Opinion
Case No. 6D23-1231
04-28-2023
Jose Luis ROJAS, Appellant, v. STATE of Florida, Appellee.
Matthew J. Metz, Public Defender, and Joshua T. Mosley, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
Matthew J. Metz, Public Defender, and Joshua T. Mosley, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
COHEN, J.
Jordan Nix went to her storage unit to retrieve a TV that she intended to sell. After entering her unit and partially shutting the door, she heard footsteps approach. From outside the storage unit, the Defendant, Jose Rojas, reached under the door, opened it, and entered. Rojas pulled out a knife and held it at Nix, who was confined by the limited space and Rojas's presence. Rojas told Nix that he would stab her if she moved. Afraid for her life, Nix grabbed the knife and Rojas's hand and pushed them up enough for her to escape into the hallway of the facility. A struggle ensued in the hallway continuing until Nix reached the exit doors, which opened automatically. At that point, Rojas let go of Nix, and she ran outside.
This case was transferred from the Fifth District Court of Appeal to this Court on January 1, 2023.
Rojas was convicted of both kidnapping with the intent to inflict bodily harm or terrorize (with a weapon) and aggravated assault with a deadly weapon. He challenges these convictions on double jeopardy grounds.
Double jeopardy analysis requires an examination of the elements of the charges, not a review of the factual underpinnings of each specific case. See § 775.021(4)(a), Fla. Stat. (2021) ; State v. Maisonet-Maldonado , 308 So. 3d 63, 70 (Fla. 2020) ("A court may not examine the facts of the record but may only examine the statutory elements of the two offenses to determine whether one requires proof of an element that the other does not."). Under this framework, we cannot agree that double jeopardy prohibits dual convictions for kidnapping with a weapon and aggravated assault.
Kidnapping requires proof that the victim was confined, abducted, or imprisoned against her will, with the intent to inflict bodily harm or terrorize the victim. § 787.01(1)(a)(3), Fla. Stat. (2021). Aggravated assault requires proof that the offender threatened to do violence to the victim, appeared to have the ability to carry out that threat, and did an act creating a well-founded fear that violence was imminent. §§ 784.011, 784.021, Fla. Stat. (2021). Kidnapping with the intent to terrorize, even with the weapon enhancement, does not require the commission of an aggravated assault. An offender can carry a weapon without brandishing it and be convicted of kidnapping with the weapon enhancement.
Hypothetically, the victim does not even have to be aware of the presence of the weapon.
Rojas focuses on the facts of the instant case, specifically that he did use the weapon (a knife) and commit an assault on the victim. That focus has been abrogated by statute and the supreme court's decision in Maisonet-Maldonado .
AFFIRMED.
NARDELLA, J., concurs.
SMITH, J., concurs, with result only.