Kidnapping Defense Attorney

Applicable Jury Instructions

To prove the crime of kidnapping, the state must provide the following three elements beyond a reasonable doubt:

1. The defendant [forcibly][secretly][by threat]

• [confined][abducted][imprisoned]
• (victim) against [his][her] will.

2. The defendant had no lawful authority.

3. The defendant acted with the intent to:

• Give 3a, 3b, 3c, or 3d as applicable
• If 3b is given, define applicable felony
• a. hold for ransom or reward or as a shield or hostage.
• b. commit or facilitate commission of (applicable felony).
• c. inflict bodily harm upon or to terrorize the victim or another person.
• d. interfere with the performance of any governmental or political function.
• Give when 3b is alleged. See Carron v. State, 414 So.2d 288 (Fla. 2nd DCA 1982), approved 427 So.2d 192 (Fla. 1982). 
• In order to be kidnapping, the [confinement][abduction][imprisonment]
• a. must not be slight, inconsequential, or merely incidental to the felony;
• b. must not be of the kind inherent in the nature of the the felony;
• c. must have some significance independent of the felony in that it makes the felony substantially easier of commission or substantially lessens the risk of detection.
• Read only if confinement is alleged and child is under 13 years of age
• Confinement of a child under the age of 13 is against [his][her] will if such confinement is without the consent of [his][her] parent or legal guardian.

Potential Sentencing Enhancements

Under the Prison Releasee Re-Offender statute, as set forth in s. 775.082(9)(a), a person who commits (or attempts to commit) an enumerated offense, including kidnapping, within three years of release from a state or federal prison, must be sentenced to the statutory maximum. Thus, where a person is charged with kidnapping, the court would have no choice but to sentence the person to life in Florida Department of Corrections upon the entry of a guilty (or no contest) plea, or a finding of guilt by a the jury. Sentencing guidelines do not apply in PRR cases.

Under the Habitual Violent Felony Offender statute, as set forth s. 775.084(1)(b), a defendant who has previously been convicted of an enumerated felony, including kidnapping, and the pending felony for which the defendant is to be sentenced was committed either: (a) while the defendant was serving a prison or other sentence that was imposed as a result of a prior conviction for an enumerated felony (including armed burglary); or (b) within five years of the date of conviction of the last prior enumerated felony (including kidnapping), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or other sentence that is imposed as a result of a prior conviction for an enumerated felony (including kidnapping), whichever is later, will be subject to certain sentencing enhancements. In the case of a life felony or a felony of the first degree, the defendant may be sentenced to life and shall not be eligible for release for fifteen years. In the case of a second degree felony, for a term not exceeding thirty years, and the defendant shall not be eligible for release for ten years. In the case of a felony of the third degree, the defendant may be sentenced to a term not exceeding ten years and shall not be eligible for release for five years.

Under the Three Time Violent Felony Offender statute, as set forth in. s. 775.084(1)(c), the court must impose certain mandatory minimum terms of imprisonment if it finds that (1) the defendant has previously been convicted two or more times of an enumerated felony (or an attempt to commit an enumerated felony - including kidnapping), and (2) the felony for which the defendant is to be sentenced is an enumerated felony (including kidnapping) and was committed: (a) while the defendant was serving a prison sentence or other sentence imposed as a result of a conviction for an enumerated felony (including kidnapping); or (b) within five years of the date of conviction of the last prior enumerated felony (including kidnapping), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or other sentence imposed as a result of a prior conviction for an enumerated offense (including kidnapping), whichever is later. The court must sentence a three time violent felony offender as follows: in the case of a felony punishable by life, to a term of imprisonment for life; in the case of a felony of the first degree, to a term of imprisonment of thirty years; in the case of a felony of the second degree, to a term of imprisonment of fifteen years; and in the case of a felony of the third degree, to a term of imprisonment of five years.

Under the Violent Career Criminal statute, as set forth in s. 775.084(1)(d), the court must impose certain mandatory terms of imprisonment if it finds that: (1) the defendant has previously been convicted three or more times for an offense in this state that is a forcible felony (kidnapping) or other enumerated offense; (2) the defendant has been incarcerated in a state or a federal prison; (3) the primary felony offense for which the defendant is to be sentenced is an enumerated felony (including kidnapping), was committed on or after October 1st, 1995, and (a) while the defendant was serving a prison or other sentence that was imposed as a result of a prior conviction for an enumerated felony (including kidnapping); or (b) within five years of the date of conviction of the last prior enumerated felony (including kidnapping), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, or parole, or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later. Where such findings are made, the court must sentence the violent career criminal as follows: in the case of a life felony or a felony of the first degree, for life; in the case of a felony of the second degree, for a term of years not exceeding forty with a mandatory minimum term of thirty years imprisonment; in the case of a felony of the third degree, for a term of years not exceeding fifteen, with a mandatory minimum of ten years imprisonment.

Under Florida's 10-20-Life statute, as set forth in s. 775.087, any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, the conviction was for an enumerated offense, including kidnapping, and during the commission of the offense such person actually possessed a firearm, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted of aggravated assault, possession of a firearm by a felon, or burglary to a conveyance shall be sentenced to a minimum term of imprisonment of three years if such person possessed a firearm during the commission of the offense. If the person commits an enumerated felony, including kidnapping, and in the process discharges a firearm, he or she shall be sentenced to 20 years in prison. If the person commits an enumerated felony, including kidnapping, and causes death or great bodily harm to another by discharging a firearm, he or she shall be sentenced to a minimum of 25 years in prison, and up to life.

Kidnapping is a first degree, punishable by life felony that will score many years in state prison on Florida's criminal punishment code. A conviction may also invoke one or more of Florida's recidivist sentencing enhancements depending on the person's criminal history and/or date of release from state prison for a prior offense. If you have been arrested or charged with Kidnapping or other custody related offense, an experienced St. Petersburg criminal defense attorney can help.

Contact The Kilfin Law Firm, P.C. at (888) 258-8049 to discuss your case.

Related Offenses

The following is a list of kidnapping related offenses, as set forth in Chapter 787, Florida Statutes:

• Luring or enticing a child (Fla. Stat. § 787.025)

(1) As used in this section, the term: (a) "Structure" means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilege thereof. (b) "Dwelling"means a building or conveyance of any kind, either temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging together therein at night, together with the curtilege thereof. (c) "Conveyance" means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car. (d) "Convicted" means a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendre, regardless of whether adjudication is withheld.

(2)(a) A person 18 years of age or older who intentionally lures or entices, or attempts to lure or entice, a child under the age of 12 into a structure, dwelling, or a conveyance for other than a lawful purpose commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (b) A person 18 years of age or older who, having been previously convicted of a violation of paragraph (a), intentionally lures or entices, or attempts to lure or entice, a child under the age of 12 into a structure,dwelling, or conveyance for other than a lawful purpose, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) A person 18 years of age or older who, having been previously convicted of a violation of chapter 794, s. 800.04, or s. 847.0135(5), or a violation of a similar law of another jurisdiction, intentionally lures or entices, or attempts to lure or entice, a child under the age of 12 into a structure, dwelling, or conveyance for other than a lawful purpose, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) It is an affirmative defense to a prosecution under this section that: (a) The person reasonable believed that his or her action was necessary to prevent the child from being seriously injured. (b) The person lured or enticed, or attempted to lure or entice, the child under the age of 12 into a structure, dwelling or conveyance for a lawful purpose. (c) The person's actions were reasonable under the circumstances and the defendant did not have any intent to harm the health, safety, or welfare of the child.

Interference with child custody (Fla. Stat. § 787.03)

• (1) Whoever, without lawful authority, knowingly or recklessly takes or entices, or aids, abets, hires or otherwise procures another to take or entice, any minor or any incompetent person from the custody of the minor's or incompetent person's parent, his or her guardian, a public agency having the lawful charge of the minor or incompetent person, or any other lawful custodian commits the offense of interference with custody and commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084.
• (2) In the absence of a court order determining rights to custody or visitation with any minor or with any incompetent person, any parent of the minor or incompetent person, whether natural or adoptive, step-parent, legal guardian, or relative of the minor or incompetent person who has custody thereof and who takes, detains, conceals, or entices away that minor or incompetent person within or without the state with malicious intent to deprive another person of his or her right to custody of the minor or incompetent person commits a felony of the third degree, punishable as provided in s. 775.082, s 775.083, or s. 775.084.
• (3) A subsequently obtained court order for custody or visitation does not affect application of this section.
• (4) It is a defense that (a) The defendant had reasonable cause to believe that his or her action was necessary to preserve the minor or incompetent person from danger to his or her welfare. (b) The defendant was the victim of an an act of domestic violence or had reasonable cause to believe that he or she was about to become the victim of an act of domestic violence as defined in s. 741.28, and the defendant had reasonable cause to believe that the action was necessary in order for the defendant to escape from, or protect himself or herself from, the domestic violence or to preserve the minor or incompetent person from exposure to the domestic violence. (c) The minor or incompetent person was taken away at his or her own instigation without enticement and without purpose to commit a criminal offense with or against the minor or incompetent person, and the defendant establishes that it was reasonable to rely on the instigating acts of the minor or incompetent person.
• (5) Proof that a person has not attained the age of 18 years creates that presumption that the defendant knew the minor's age or acted in reckless disregard thereof.
• (6)(a) The offenses prescribed in subsections (1) and (2) do not apply in cases in which a person having a legal right to custody of a minor or incompetent person is the victim is the victim of any act of domestic violence, has reasonable cause to believe that he or she is about to become the victim of any act of domestic violence, as defined in s. 741.28, or believes that his or her action was necessary to preserve the minor or the incompetent person from danger to his or her welfare and seeks shelter from such acts or possible acts and takes with him or her the minor or incompetent person. (b) In order to gain the exception conferred by paragraph (a) , a person who takes a minor or incompetent person under this subsection must: 1. Within 10 days after taking the minor or incompetent person, make a report to the sheriff's office or state attorney's office for the county in which the minor or incompetent person resided at the time he or she was taken, which report must include the name of the person taking the minor or incompetent person, the current address and telephone number of the person and minor or incompetent person, and reasons the minor or incompetent person was taken. 2. Within a reasonable time after taking a minor, commence a custody proceeding that is consistent with the federal Parental Kidnapping Prevention Act, 28 U.S.C. s. 1738A, or the Uniform Child Custody Jurisdiction and Enforcement Act, ss. 61.501-61.542. 3. Inform the sheriff's office or the state attorney's office for the county in which the minor or incompetent person resided at the time he or she was taken of any change of address or telephone number of the person and the minor or incompetent person. (c) 1. The current address and telephone number of the person and the minor or incompetent person which are contained in the report made to a sheriff or state attorney under paragraph (b) are confidential and exempt from s.119.07(1) and s. 24(a), Art. I of the State Constitution. 2. A sheriff or state attorney may allow an agency, as defined in s. 119.011, to inspect and copy records made confidential and exempt under this paragraph in furtherance of that agency's duties and responsibilities.

Removing minors from state or concealing minors contrary to state agency order or court order (Fla. Stat. § 787.04)

• (1) It is unlawful for any person , in violation of a court order, to lead, take, entice, or remove a minor beyond the limits of this state, or to conceal the location of a minor, with personal knowledge of the order.
• (2) It is unlawful for any person, with criminal intent, to lead, take, entice, or remove a minor beyond the limits of this state, or to conceal the location of a minor, during the pendency of any action or proceeding affecting custody of the minor, after having received notice as required by law of the pendency of the action or proceeding, without the permission of the court in which the action or proceeding is pending.
• (3) It is unlawful for any person to knowingly and willfully lead, take, entice, or remove a minor beyond the limits of this state, or to knowingly and willfully conceal the location of a minor, during the pendency of a dependency proceeding affecting such minor or during the pendency of any investigation, action, or proceeding concerning the alleged abuse or neglect of such minor, after having received actual or constructive notice of the pendency of such investigation, action, or proceeding, and without the permission of the state agency or court in which the investigation, action, or proceeding is pending.
• (4) It is unlawful for any person, who has carried beyond the limits of this state any minor whose custody is involved in any action or proceeding pending in this state pursuant to the order of the permission of the court, thereafter, to fail to produce the minor in the court or deliver the minor to the person designated by the court.
• (5) It is a defense under this section that a person who leads, takes, entices, or removes a minor beyond the limits of the state reasonably believes that his or her action was necessary to protect the minor from child abuse as defined in s. 827.03.
• (6) Any person who violates this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Resources

The following is a list of outside sources, prior blog posts, and other website sections on topics related to kidnapping offenses:

Links

1. HG. Org: Florida Sentencing Enhancements Pt. 1: Prison Releasee Re offenders
2. HG. Org: Florida Sentencing Enhancements Pt. 2: Habitual Felony Offenders and Habitual Violent Felony Offenders
3. HG. Org: Florida Sentencing Enhancements Pt. 3: Three Time Violent Felony Offenders and Violent Career Criminals
4. HG. Org: Florida Sentencing Enhancements Pt. 4: 10-20-Life

Blog Posts

1. Do I Need a St. Petersburg Criminal Defense Attorney?
2. They Never Read Me My Rights - Can My Charge Be Dismissed?
3. Inchoate (Incomplete) Crimes: Attempt, Solicitation and Conspiracy
4. Florida's Principal Statute: All For One and One For All
5. Florida's William's Rule: What Is It and What Does It Mean For My Criminal Case?
6. Pre-Trial Release In Florida: The Basics
7. Speedy Trial in Florida: An Overview
8. Search and Seizure in Florida: An Overview

Sections

1. Alibi As a Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
2. Statute of Limitations as a Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
3. Affecting the Filing Decision
4. Pre-trial Diversion
5. Withholding of Adjudication
6. Plea Negotiations
7. Defensive Motions
8. Trial
9. Sentencing
10. Probation Violations
11. Violent Felony Offenders of Special Concern

The Bottom Line

Kidnapping is a punishable by life felony that will, as a level 9 offense (and in some instance a level 10 offense) score significant prison time at the low end of the guidelines. It is a forcible felony that can invoke Florida's recidivist sentencing enhancements (such as the PRR enhancement) depending on the accused person's prior record and/or release date from prison for a prior felony offense. Where the alleged victim is under the age of 13, and the accused, in addition to committing a kidnapping offense, commits another statutorily enumerated felony against the victim, the accused can be charged, convicted and sentenced for both crimes. False imprisonment is a less serious, but related offense that may provide a viable charging alternative to kidnapping. In some instances, this may be negotiated on a pre-filing basis or perhaps as part of a subsequent plea agreement where kidnapping has been formally charged. This will often depend on a number of factors including the nature of the underlying offense, the accused person's prior record, any mitigating factors, and victim input. No two cases are alike and what can be done in one situation may not be a realistic option in another. No matter what the circumstances are, however, an experienced St. Petersburg criminal defense attorney can help.

If you have been charged with either Kidnapping or False Imprisonment, contact our St. Petersburg office today for a free initial consultation. We are available seven days a week, and after hours appointments are always available.