Opinion
No. 82-1549.
October 12, 1983.
Appeal from the Circuit Court, Broward County, Stanton S. Kaplan, J.
Joseph L. Schneider of Leen Schneider, Hollywood, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
The defendant appeals a conviction and sentence for attempted sexual battery, kidnapping, and possession of a weapon in the commission of a felony. We affirm.
Purporting to be a police officer, the defendant arrested an individual operating a vehicle without a license. The defendant drove the victim to a wooded area where he sexually attacked and repeatedly hit him with a bat. The victim was released and defendant ran into the woods. He was later apprehended, arrested, and convicted after a jury trial.
On appeal, the defendant asserts that the trial court erroneously denied a motion for a mistrial on grounds that the prosecutor elicited improper statements from a witness in violation of a pre-trial stipulation. We have reviewed the record and find no abuse of discretion in the procedure followed by the trial judge.
Defendant also alleges that the court erred in sentencing him for both kidnapping and attempted sexual battery. He maintains that the abduction of the victim was inherent in the attempted sexual battery. However, applying the test enunciated in Faison v. State, 426 So.2d 963 (Fla. 1983), it is clear that this is not error. The abduction was not incidental to the crime, was not inherent in the sexual battery, and made the commission of the crime substantially easier.
We have considered the other points raised on appeal and find them to be without merit.
AFFIRMED.
HURLEY and DELL, JJ., concur.