DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BARIAN KEITH PARRISH, JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D19-1991

[February 24, 2021]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Charles Schwab, Judge; L.T. Case No. 562016CF001852A.

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear, 

Senior Assistant Attorney General, West Palm Beach, for appellee.

ARTAU, J.

A jury convicted the defendant of multiple crimes, including four 

kidnapping convictions arising out of his participation in a robbery of an 

auto parts store one night in the summer of 2016. While we affirm three 

of the kidnapping convictions challenged on appeal, we reverse one of them 

because the evidence was insufficient under the three-part test set forth 

in Faison v. State, 426 So. 2d 963 (Fla. 1983), to support the commission 

of that kidnapping count. Instead, we remand on that count pursuant to 

section 924.34, Florida Statutes, for entry of a judgment of conviction for

the lesser included offense of false imprisonment while armed and 

masked.

I. The Charges

The State charged the defendant with one count of burglary, six counts 

of robbery, and six counts of kidnapping in connection with his 

participation in the robbery of an auto parts store. The State alleged the 

defendant kidnapped each of the victims by “forcibly, secretly, or by threat 

confining, abducting, or imprisoning” them against their will and without 
2

lawful authority with the intent to “[c]ommit or facilitate [the] commission 

of” the underlying burglary and robberies, in violation of section 

787.01(1)(a)2., Florida Statutes (2015).

The evidence presented at trial primarily centered on the issue of 

identity—whether the defendant was one of the perpetrators of the crimes. 

However, because the evidence presented to the jury established the 

defendant's participation in these crimes beyond a reasonable doubt, our 

focus is on the manner in which these crimes were committed.

Shortly before the auto parts store closed on the evening in question, 

three masked gunmen entered the store. Three employees, including the 

manager, and three customers were in the store at the time. One of the 

gunmen approached the manager, who was assisting a customer, pressed 

a gun to the back of the manager's head, and ordered everyone to get on 

the ground. The manager and two customers near him complied with the 

gunman’s directive and got down on the ground.

The gunman grabbed the manager by his shirt and led him to the back 

of the store to open the safe. The gunman and the manager encountered 

another employee taking out the trash in the back of the store. The 

gunman yelled for this employee to get down. After the employee complied, 

the gunman took his wallet and cell phone.

Meanwhile, the other two gunmen, one of whom was the defendant, 

remained with the two customers and one of the employees. When this

employee refused to comply with the gunmen’s commands, one of the 

gunmen grabbed him by the collar, threw him back down on the floor, and 

dragged him by his belt to the middle of the store. After violently dragging 

the employee into compliance, the employee and the two customers 

acquiesced to the gunmen’s commands to crawl to a room in the back of 

the store where they were held at gunpoint so they could not be seen 

through the storefront’s transparent glass. At some point during this 

ordeal, the gunmen went through each of the victims’ pockets and took

their valuables, including jewelry, money, credit cards, cellphones, and car 

keys.

The manager was still with the first gunman at the safe when the 

employee and two customers finished their crawl on the floor to the back 

of the store. The third customer in the store at the time was found by one 

of the gunmen in an area away from the others towards the back of the 

store. This customer was ordered to turn over his valuables but was not 

forced at gunpoint to crawl to the back of the store.
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After the gunmen had taken all the money from the back safe as well 

as a black box located near the safe, one of the gunmen took a chain from 

around the manager’s neck and ordered him to return to the front of the 

store to open the cash registers. Once the three gunmen had retrieved all 

the money from the cash registers, as well as the manager’s valuables, 

including his cellphone, credit cards, keys and $200 in cash, they left the 

store through the front entrance.

The manager immediately locked the front doors and called 911.

II. Defense Motion for Judgments of Acquittal

At the close of the State’s case, defense counsel moved for judgments

of acquittal on the kidnapping charges. Defense counsel argued that the 

State’s evidence failed to satisfy the Faison test for determining whether 

the victims’ confinement during the burglary and robberies was sufficient 

to constitute the separate crime of kidnapping. Specifically, defense 

counsel argued the confinement and movement of the victims during the 

criminal episode was inherent “to the act of robbery.” Defense counsel 

further argued no hostages were taken during the criminal episode and 

the victims were never locked in a room evidenced by the fact that their 

confinement ceased when the accompanying crimes ended.

The trial court denied defense counsel’s motion as it related to the four 

kidnapping counts on appeal. The trial court specifically found the 

evidence did not satisfy the Faison test as to the two kidnapping counts 

involving the employee first encountered by a gunman while taking out the 

trash in the back of the store as well as the customer encountered by a 

gunman towards the back of the store. As a result, the trial court 

submitted those two counts to the jury only as false imprisonment counts.

On the remaining four kidnapping counts, the trial court found 

sufficient evidence existed of confinement and movement of those victims 

away from the storefront’s transparent glass to make the underlying 

felonies easier to commit and lessen the risk that the commission of the 

crimes would be detected by “the outside world.” Accordingly, the trial 

court submitted those four kidnapping counts to the jury, which returned 

guilty verdicts on each.

III. The Supreme Court’s Faison Test

Several decades ago, in Mobley v. State, 409 So. 2d 1031, 1034 (Fla. 

1982), which was the first case from our supreme court construing 

Florida’s new kidnapping statute—section 787.081(1)(a)2.—the court 
4

addressed its concern that the statute could result in “any criminal 

transaction which inherently involves the unlawful confinement of another 

person, such as robbery or sexual battery,” also being a kidnapping. 

Thereafter, the supreme court in Faison chose to adopt a three-part test 

for determining when confinement during the commission of another 

felony will be sufficient to constitute the separate offense of kidnapping. 

426 So. 2d at 965-66. Under the Faison test, the confinement necessary 

to support a kidnapping alleged to have facilitated the commission of 

another felony: 

(a) Must not be slight, inconsequential and merely incidental 

to the other crime [prong 1];

(b) Must not be of the kind inherent in the nature of the other 

crime [prong 2]; and

(c) Must have some significance independent of the other 

crime in that it makes the other crime substantially easier of 

commission or substantially lessens the risk of detection 

[prong 3].

Id. at 965.

A few years later, in Ferguson v. State, 533 So. 2d 763, 764 (Fla. 1988), 

the supreme court applied the Faison test in the context of a case on 

appeal from this court involving a kidnapping committed to facilitate a 

robbery. In Ferguson, after the robbery of a fast-food restaurant was 

complete, the defendant forced the manager and three employees at 

gunpoint outside the store and into a restroom located in the rear of the 

store. Id. The defendant told the victims to stay inside the restroom as he 

made his escape. Id. However, the case did not turn on whether the 

confinement ceased when the accompanying crime ended. Nothing in the 

supreme court’s opinion in Ferguson, or this court’s underlying opinion in 

that case, indicated the door to the restroom was in any way locked or 

barricaded by the defendant. Id.; Ferguson v. State, 519 So. 2d 747, 747 

(Fla. 4th DCA 1988). Nonetheless, the supreme court determined the 

confinement of the victims was sufficient to meet the definition of 

kidnapping under Faison’s three-part test. Ferguson, 533 So. 2d at 764. 

Specifically, the supreme court explained:

First, the movement was not slight, inconsequential, or 

incidental to the robbery because the victims were forced out 

of the restaurant at gunpoint and into a restroom located in 

the rear. Second, the asportation was not inherent in the 
5

nature of the crime because the robbery could have been 

committed on the spot without any movement whatsoever. 

Third, the confinement was intended to make it more difficult 

for the victims to identify the perpetrator and immediately call 

for help.

Id. (emphasis added). In reaching those conclusions, the supreme court 

observed:

The duration of the confinement is not an integral part of the 

test even though it may bear on whether the confinement was 

slight or inconsequential. Moreover, the determination of 

whether the confinement makes the other crime substantially 

easier of commission or substantially lessens the risk of 

detection does not depend upon the accomplishment of its 

purpose. The question is whether the initial confinement was 

intended to further either of these objectives.

Id. In affirming the kidnapping convictions, the supreme court approved 

of this court’s opinion, and disapproved of the manner in which the First 

District had applied the Faison test in Chaney v. State, 464 So. 2d 1261 

(Fla. 1st DCA 1985). Ferguson, 533 So. 2d at 764-65. As the supreme 

court explained, the First District in Chaney had held facts substantially 

similar to those at issue in Ferguson to have been insufficient to support 

a separate kidnapping of an employee forced at gunpoint into a barricaded 

bathroom at the conclusion of a robbery. See id. at 764 (summarizing 

facts in Chaney).

In Walker v. State, 604 So. 2d 475, 476-77 (Fla. 1992), the supreme 

court again applied the Faison test in the context of a case involving an

alleged kidnapping committed to facilitate the robbery of a convenience

store. The facts relevant to the Faison analysis, as summarized by the 

supreme court in Walker, were as follows:

At approximately 9:30 p.m., [the defendant] entered a 

convenience store. After taking money from the cash register 

and from a customer, [the defendant] ordered all four of the 

occupants of the store to go to the back of the store and lie on 

the floor. Three individuals moved a distance of thirty to forty 

feet but did not lie down. The fourth individual moved a 

distance of ten feet after [the defendant] threatened to shoot 

him. [The defendant] immediately left the store, and the clerk 

locked the door to the store and called the police.
6

Id. at 476 (emphasis added). The supreme court determined the evidence 

in Walker was insufficient to meet the Faison test’s first prong because 

“[t]he limited movement and confinement of the four occupants within the 

interior of the store were not significant.” Id. at 477. The supreme court 

also noted that “the facts relied upon to support the kidnapping occurred 

within a matter of seconds.” Id.

In Berry v. State, 668 So. 2d 967, 968-69 (Fla. 1996), the supreme court 

once again applied the Faison test in the context of a case, again on appeal 

from this court, involving kidnapping committed as part of a home 

invasion robbery. The defendant and “several other individuals” entered

an apartment and robbed the resident and his friend at gunpoint. Id. at 

968. The friend’s hands were “tied behind his back with a hanger and his 

feet were tied together with a telephone cord.” Id. The friend was then 

“made to kneel down with his chest over a dining room chair” while “the 

robbers forced [the resident] to walk from room to room of the apartment 

to show them where valuable items were located.” Id. When the robbery 

was complete, the resident’s hands were tied behind his back and his legs 

were tied to his hands, “leaving him face down on the floor.” Id. The 

defendant and his fellow perpetrators “left the apartment without untying 

the two men.” Id. The resident “freed himself shortly thereafter and, after 

leaving the apartment to call the police, returned and untied” his friend. 

Id.

The supreme court approved this court’s decision affirming the 

defendant’s kidnapping convictions and disapproved the first district’s 

decision in Brinson v. State, 483 So. 2d 13 (Fla. 1st DCA 1985), involving 

substantially similar facts, and with which this court had certified conflict.

Berry, 668 So. 2d at 968, 970. While the supreme court concluded that

the evidence presented in Berry met the Faison test, it made the following 

gratuitous observations regarding the Faison test’s first prong:

We construe this prong to mean that there can be no 

kidnapping where the only confinement involved is the sort 

that, though not necessary to the underlying felony, is likely 

to naturally accompany it. For example, if [the defendant] and 

the others had confined the victims by simply holding them at 

gunpoint, or if the robbers had moved the victims to a different 

room in the apartment, closed the door, and ordered them not 

to come out, the kidnapping conviction could not stand. In 

both hypotheticals, any confinement accompanying the 

robbery would cease naturally with the robbery. By contrast, 

in this case the robbers left the scene of the robbery without 

untying the victims, thereby leaving them both in a precarious 
7

and vulnerable state for a period beyond the robbery. Like the 

situation where the victim of a forcible felony is barricaded or 

locked in a room or closet, the confinement continued even 

after the robbery had ceased. This is not the sort of 

confinement that is incidental to robbery.

Id. at 969 (emphasis added).

As this court has explained:

[A] purely gratuitious [sic] observation or remark made in 

pronouncing an opinion and which concerns some rule, 

principle or application of law not necessarily involved in the 

case or essential to its determination is obiter dictum, pure 

and simple. While such dictum may furnish insight into the 

philosophical views of the judge or the court, it has no 

precedential value.

Bunn v. Bunn, 311 So. 2d 387, 389 (Fla. 4th DCA 1975) (emphasis added).

Thus, the hypotheticals discussed by the supreme court in Berry are 

dicta. They do not constitute part of the holding in that case. This is clear 

not only from the supreme court’s statement that it was discussing 

“hypotheticals,” Berry, 668 So. 2d at 969, but also from the supreme court 

having already determined in Ferguson that being placed in an unlocked 

and unbarricaded restroom at the conclusion of a robbery was sufficient 

confinement, separate from an underlying robbery, to support a 

kidnapping. Ferguson, 533 So. 2d at 764; see also generally Puryear v. 

State, 810 So. 2d 901, 905 (Fla. 2002) (“Where a court encounters an 

express holding from this Court on a specific issue and a subsequent 

contrary dicta statement on the same specific issue, the court is to apply 

our express holding in the former decision until such time as this Court 

recedes from the express holding.”).

Although this court suggested in Lewis v. State, 50 So. 3d 86, 88 (Fla. 

4th DCA 2010), that the supreme court’s dicta in Berry could be read as 

adding a fourth prong—that a kidnapping should not stand if a “victim’s 

confinement ceases when the accompanying crime ends”—to the threepart Faison test, the supreme court in Berry specifically declined to “revise 

the test in Faison.” Berry, 668 So. 2d at 970. The defendant in Berry had 

urged the supreme court to adopt two additional prongs to the Faison test, 

one of which would have required “a substantial break between the 

underlying felony and the kidnapping” to address the timing of the 

conclusion of a victim’s confinement during or after an accompanying 
8

crime. Id. In declining to revise the three-part test, the supreme court 

reasoned:

While we agree that the current test is not an easy one to

apply, we attribute this difficulty not to the test itself but 

rather to the diverse factual situations to which it must be 

applied. We fail to see how adding two more prongs to the test 

would eliminate the problem. In any event, these two 

additional elements would lead us to stray even further from 

the language of the statute. This we are not willing to do.

Id. (emphasis added).

We are, likewise, unwilling to stray from the language of the statute. 

Therefore, our analysis will be limited to application of the Faison test 

which we are bound to apply.

IV. Faison Analysis

The defendant argues on appeal that the state’s evidence did not satisfy 

the Faison test’s first and third prongs. To the extent the defendant argued 

in the trial court that the second prong of the Faison test was not met, he 

has abandoned that argument on appeal, obviating the need for us to 

address the sufficiency of the evidence to support that prong. Cf. Whitted 

v. State, 362 So. 2d 668, 670 n.2 (Fla. 1978) (declining to consider point 

argued below in support of motion to dismiss because defendant failed to 

raise it on appeal). Thus, we will limit our review to the disputed prongs.

In furtherance of his argument, the defendant asserts that the 

confinement and movement of the four kidnapping victims in this case—

the manager, the employee, and two of the customers—were incidental to 

the robberies and, quoting the Berry dicta, “cease[d] naturally” once the 

robberies were complete. In making this argument, the defendant relies 

not only on the Berry “hypotheticals,” which he characterizes as being “on 

all fours” with the facts in his case, but also on the dicta in Lewis.

The defendant’s reliance on the dicta in Berry and Lewis is misplaced.

While this court repeated the dicta from Berry in Lewis, we never expanded 

the supreme court’s Faison test. Any suggestion that another prong 

should be added to the test based on dicta in Berry from the hypotheticals

discussed by the supreme court would have had to await an actual case 

involving the same facts that were hypothetically asserted. Moreover, 

Lewis’s repetition of the Berry dicta cannot comprise part of its holding 

because, if it did, Lewis would be in conflict with this court’s prior decision 
9

in Brown v. State, 727 So. 2d 337, 338 (Fla. 4th DCA 1999), where the 

defendant’s kidnapping conviction on facts substantially similar to those 

at issue in this case was upheld as meeting the test set forth in Faison

without any additional prong.

Brown involved a robbery and burglary of a fast-food restaurant that 

“ultimately turned into a kidnapping.” Id. “The defendant was found 

guilty with an accomplice of accosting an employee of the restaurant in its 

parking lot just after closing, whence they forced her back into the 

restaurant and into the office, in which they held her while they completed 

the robbery and burglary.” Id. (emphasis added). We rejected the 

defendant’s contention in that case that “the restraint and confinement of 

the employee was merely incidental to the robbery/burglary” and 

“affirm[ed] the kidnapping conviction as well as the robbery and burglary.”

Id.; see also, e.g., Panno v. State, 517 So. 2d 129, 131 (Fla. 4th DCA 1987) 

(determining that, under Faison, the forced movement of two teenaged girls 

from outside their home into their home “on pain of being hurt,” and after 

“shov[ing] one of them to the ground on the way to the house,” was “not 

merely incidental to the burglary” facilitated by kidnapping the girls

(emphasis added)).

Johnson v. State, 509 So. 2d 1237 (Fla. 4th DCA 1987), was another 

similar case where a convenience store clerk was made to hand over 

everything in the cash register at gunpoint. Id. at 1238. Thereafter, the 

clerk was “taken to a rear room” of the store and “ordered into a bathroom.”

Id. “The defendant barricaded the bathroom by tying shopping carts to 

the door in order to make it more difficult for the victim to escape.” Id. 

Upon hearing the defendant leave the store, the clerk “was able to open 

the door enough to squeeze her hand through, loosen the cord, and move 

the door sufficiently to escape.” Id. While recognizing that application of 

the Faison test “continues to prove difficult in practice,” id. at 1239, we

concluded the facts in Johnson were sufficient to satisfy the test and 

affirmed the kidnapping conviction. Id. at 1240. In reaching this 

conclusion, we reasoned:

Forcing the victim into the backroom, and then into the 

bathroom, was not inherent in the nature of the completed 

robbery. The fact that she was not injured nor tied up does 

not make the movement and confinement less significant. 

Here, barricading the victim in the room, even for a brief time, 

was intended to, and did, facilitate the defendant’s escape and 

lessen the risk of his detection.

Id. 
10

In Castro v. State, 122 So. 3d 912, 914-15 (Fla. 4th DCA 2013), we also 

affirmed kidnappings committed during two separate liquor store 

robberies. Id. at 914. In concluding the confinement of the clerks in both 

robberies was sufficient to constitute kidnappings independent of the 

robberies, we emphasized that, according to Berry, “the first requirement 

of Faison did not require movement of the victim to constitute kidnapping.” 

Id. (citing Berry, 668 So. 2d at 970). In distinguishing Lewis, we reasoned 

the victims in Castro, like the victims in Berry, were “left in a precarious 

position which made the crime substantially easier to commit and reduced 

the risk of detection.” Id. at 915.

Applying the Faison test here, we conclude the confinement and 

movement of the employee who had been dragged on the floor by his belt 

before he was made to crawl to the room in the back of the store, and the 

two customers who were forced to crawl to the room in the back of the 

store or face the prospect of either being shot or violently dragged like the 

employee, was sufficient under Faison’s first and third prongs to support 

the defendant's convictions for kidnapping these victims.

The confinement of these victims was not “slight, inconsequential and 

merely incidental to” the underlying burglary and robberies because it was 

accomplished with “substantial force and violence” by virtue of these 

victims being made to crawl at gunpoint and threat of being violently 

dragged all the way to the back room in the store [prong 1]. Faison, 426 

So. 2d at 966. Their movement and captivity were not merely incidental 

to the robbery or other accompanying crimes. The gunmen could have 

simply ordered them to the ground right where they found each victim and 

taken their belongings without violently dragging one of them and forcing 

the others to crawl at gunpoint under threat of being dragged to their room 

of captivity at the back of the store. Unlike the manager who was brought 

to the back room to empty the safe, the employee and two customers were 

not moved and confined in the back room for any reason that would be

merely incidental to a burglary or robbery.

 The compelled crawling of these victims at gunpoint and under threat 

of being violently dragged as one of them was—to the room in the back of 

the store where they were held captive and kept out of public sight until 

after the completion of the burglary and robbery—distinguishes this case 

from other cases cited by defendant, including Walker, 604 So. 2d at 476-

77 (where the perpetrators ordered the victims to go to the back of the 

store and lie down but only moved a short distance towards the back of 

the store while refusing to lie down), Wilcher v. State, 647 So. 2d 1013 (Fla. 

4th DCA 1994) (where the perpetrators simply “ushered” everyone to the 
11

back of the store and told everyone to lie down while they robbed the store), 

Griffin v. State, 705 So. 2d 572, 574 (Fla. 4th DCA 1998) (where the 

defendant’s gun was never pointed at the child victim who simply followed 

her mother into an unlocked room at the back of the store), Jackson v. 

State, 436 So. 2d 1101, 1102 (Fla. 4th DCA 1983) (where the victim simply 

crossed over the threshold of an open door at gunpoint), Lewis, 50 So. 3d 

at 87-88 (where the perpetrator momentarily handcuffed the store 

manager and placed her in the bathroom so the perpetrator could lock the 

front door and return to move her to the front counter where he ordered 

her to lie down while she was being asked to divulge the combination code 

for the safe in furtherance of the attempted robbery), and Orukotan v. 

State, 85 So. 3d 542, 547 (Fla. 4th DCA 2012) (where “the confinement 

ceased prior to completion of the robbery” (emphasis added)).

We find the dissent’s reliance upon our reversal of a false imprisonment 

conviction under a Faison analysis in Russell v. State, 874 So. 2d 1256, 

1257-58 (Fla. 4th DCA 2004), to be misplaced. Russell relies almost 

exclusively on an abrogated case, McCutcheon v. State, 711 So. 2d 1286, 

1288-89 (Fla. 4th DCA 1998), where we reversed a false imprisonment 

conviction based on Faison. Russell, 874 So. 2d at 1258 (citing 

McCutcheon, 711 So. 2d at 1289). In State v. Smith, 840 So. 2d 987, 989-

90 (Fla. 2003), our supreme court held that “[t]he Faison test is not 

applicable to false imprisonment convictions because the test was 

established for a particular element of the kidnapping statute that is not 

included in the false imprisonment statute.” This holding abrogated cases 

where we had reversed false imprisonment convictions based on Faison. 

Therefore, our Faison analysis in both Russell and McCutcheon has no 

continuing viability post-Smith.

Here, the confinement by compelling the victims to crawl at gunpoint 

and under threat of being violently dragged to their captivity in the back 

room for the entirety of the ordeal had “significance independent of” the 

underlying burglary and robberies in that their movement and captivity 

was not in furtherance of completing the burglary and robbery, but instead 

were done to hold the victims in the room at the back of the store so that 

they would be away from the public view of the front windows, making

these crimes “substantially easier” for the defendant to commit and 

“substantially lessen[ed his] risk of detection” [prong 3]. Faison, 426 So. 

2d at 965.

Thus, we affirm the kidnapping convictions for the confinement and 

movement of these three victims. However, we conclude the confinement 

and movement of the manager during the burglary and robbery does not 

meet the Faison test. The manager was never made to crawl at gunpoint
12

and under violent threat to the back of the store independent of the 

robbery. The manager was moved to the back of the store to facilitate the 

robbery of the money in the safe and black box in the back room. The 

manager was also moved from the back of the store to the front of the store 

during the robbery to facilitate the robbery of the cash registers. This is 

precisely what the Faison test precludes—conviction for both a kidnapping 

and robbery when the criminal transaction inherently involved the 

unlawful confinement of another person incidental to the facilitating of the 

robbery. Here, the manager’s confinement and compelled movement was 

limited to facilitating the robbery itself. We therefore reverse the 

defendant’s conviction for kidnapping the manager.

Nonetheless, we are compelled by section 924.34, Florida Statutes, to

remand for entry of a judgment of conviction and resentencing on the 

lesser included offense of false imprisonment while armed and masked.

Section 924.34 provides:

When the appellate court determines that the evidence does 

not prove the offense for which the defendant was found guilty 

but does establish guilt of a lesser statutory degree of the 

offense or a lesser offense necessarily included in the offense 

charged, the appellate court shall reverse the judgment and 

direct the trial court to enter judgment for the lesser degree of 

the offense or for the lesser included offense.

§ 924.34, Fla. Stat. (2015) (emphasis added). “[W]hen all of the elements 

of a lesser offense have been determined by the jury, section 924.34 is a 

valid exercise of the legislative prerogative allowing appellate courts to 

direct a judgment for such an offense.” State v. Sigler, 967 So. 2d 835, 

844 (Fla. 2007).

All elements of false imprisonment were necessarily determined by the 

jury in this case to have been present as to the manager’s confinement 

during the robbery. See State v. Sanborn, 533 So. 2d 1169, 1170 (Fla. 

1988) (“[F]alse imprisonment is a necessarily lesser included offense of the 

crime of kidnapping.”). Because “[t]he Faison test is not applicable to false 

imprisonment convictions” as held in Smith, 840 So. 2d at 989, a 

conviction for false imprisonment on the kidnapping count involving the 

store manager is not precluded. On remand, the trial court shall vacate 

the defendant’s conviction for kidnapping the store manager, and shall, 

instead, enter judgment of conviction and resentencing on the lesser 

included offense of false imprisonment of the store manager while armed 

and masked.
13

Affirmed in part, reversed in part, and remanded with instructions.

GERBER, J., concurs.

WARNER, J., concurs in part and dissents in part with an opinion.

WARNER, J., concurring in part and dissenting in part.

While I agree that the kidnapping conviction based upon the manager’s 

confinement should be reversed, I disagree that the other three kidnapping 

convictions satisfy the Faison test. As to those convictions, I would also 

reverse, and thus I dissent.

To briefly recap the facts surrounding the three kidnapping convictions, 

appellant was convicted of kidnapping two store customers who were 

ordered to crawl to the back of the store during the robbery. They were 

not tied up or restrained in any way. He was also convicted of kidnapping 

a store employee who was knocked to the floor, dragged to the center of 

the store at gunpoint, and then made to crawl to the back of the store with 

the rest of the customers.

Walker v. State, 604 So. 2d 475 (Fla. 1992), is analogous. There, Walker 

entered a convenience store and took money from the cash register and a 

customer. Id. at 476. He then ordered all four people in the store to go to 

the back of the store and lie on the floor. Id. Three of them moved thirty 

or forty feet to the back but did not lie down. Id. After Walker threatened

the fourth victim with a gun, the victim moved ten feet. Id. Walker was 

convicted of kidnapping, but the supreme court held that the Faison test 

was not met:

We do not believe that the facts of this case fulfill the first 

prong of the Faison analysis. The limited movement and 

confinement of the four occupants within the interior of the 

store were not significant. See Jackson v. State, 436 So. 2d 

1101 (Fla. 4th DCA 1983). Unlike in Faison, the victims were 

not dragged from room to room. They were not bound and 

blindfolded for half an hour as in Marsh v. State, 546 So. 2d 

33 (Fla. 3d DCA 1989). They were not barricaded inside the 

bathroom like in Johnson v. State, 509 So. 2d 1237 (Fla. 4th 

DCA 1987), nor were they taken out of the store and put in 

the restroom located in the rear as in Ferguson. Further, the 

facts relied upon to support the kidnapping occurred within a 

matter of seconds.
14

Id. at 477. I believe that Walker requires the reversal of the kidnapping 

convictions for the two customers ordered to crawl to the back of the store.

I do not find that crawling rather than walking makes any difference as to 

whether the confinement was slight, inconsequential, and incidental to the 

crime of robbery. Furthermore, at least one of the customers was 

threatened with a gun in Walker,1 yet the supreme court still found this 

insufficient to satisfy Faison. Therefore, threatening the customers with a 

gun does not change the Faison analysis.

The kidnapping conviction for dragging the employee to the middle of 

the store also does not satisfy the first prong of Faison based upon our 

prior precedent. In Russell v. State, 874 So. 2d 1256 (Fla. 4th DCA 2004), 

we held that the trial court erred in denying a motion for judgment of 

acquittal on a kidnapping charge. There, a clerk of a convenience store 

was outside and saw two robbers approaching. Id. at 1257. They were 

holding a shovel and a machete and yelled at the clerk. Id. The clerk 

backed up and fell. Id. They grabbed him and pulled him inside the store 

to the safe, which he opened. Id. The robbers were charged with both 

robbery and kidnapping. Id. At trial, the court denied a motion for 

judgment of acquittal on the kidnapping charge, and the defendant was 

convicted of the lesser offense of false imprisonment. Id.

On these facts, we held that the court should have granted the motion 

for judgment of acquittal as to the kidnapping charge, because the 

evidence did not satisfy the first prong of the Faison test. Id. We said:

We are unpersuaded by the state’s contention that the 

movement in this case was not slight or inconsequential 

because the victim was outside of the store and dragged in. 

We find no logical distinction, in terms of evaluating the 

nature of the movement under Faison, between a case where 

the defendant moves the victim from one room to another 

within a building to effectuate a crime and the situation 

presented in this case.

Id. at 1258. Based upon Russell, dragging a victim a few feet in the store 

would constitute slight or inconsequential movement.

The majority mistakenly states that Russell was abrogated by State v. 

Smith, 840 So. 2d 987, 989–90 (Fla. 2003), which made the Faison test 

1 In the district court opinion, the court noted that Walker threatened all four 

occupants with a gun. See Walker v. State, 585 So. 2d 1107, 1107 (Fla. 2d DCA 

1991).
15

inapplicable to false imprisonment charges. But in Russell, the defendant 

was charged and tried for kidnapping, and the motion for judgment of 

acquittal was based upon the kidnapping charge, not the false 

imprisonment charge. Therefore, we properly applied the Faison test in 

our opinion. That the jury convicted him of the lesser included offense 

does not change the analysis.

In the Faison case itself, the defendant dragged the first victim from an 

office reception area to the back where he sexually assaulted her. Faison 

v. State, 426 So. 2d 963, 964 (Fla. 1983). Later that same day, the 

defendant broke into a home where he “violently” dragged another woman 

from the kitchen down a hallway into the bedroom to sexually assault her. 

Id. In evaluating the first prong of the test it established, the court found 

that:

The movements of both victims were effected by substantial 

force and violence inflicted by Faison to overcome their 

resistance and to make them to go where he wanted. It cannot 

be said, therefore, that the asportations were either slight, 

inconsequential or merely incidental to the sexual batteries 

which followed.

Id. at 966. Thus, dragging a victim from room to room may involve 

substantial force and violence which may not be considered 

inconsequential. I do not view the facts of this case, however, to amount 

to a sufficient use of force and violence to satisfy the Faison test in light of 

the supreme court opinions and Russell.

I wholeheartedly agree with the supreme court when it wrote in Berry 

v. State, 668 So. 2d 967, 970 (Fla. 1996), “While we agree that the current 

test is not an easy one to apply, we attribute this difficulty not to the test 

itself but rather to the diverse factual situations to which it must be 

applied.” And the problem is that many of the distinctions between the 

cases are so slight that one wonders how justice is served when seemingly 

similar factual circumstances reach decidedly different results.

For these reasons, I dissent.

* * *

Not final until disposition of timely filed motion for rehearing.