Defendant Must Be Aware of Child in Stolen Car to Be Charged With Kidnapping – Delgado v. State of Florida

September 11, 2011 by David S. Seltzer

Getting to know — and prove — the mindset of the defendant is an important part of my work as a Miami-Dade criminal defense attorney. To get a conviction for many crimes, prosecutors must show that the defendant had a certain criminal mindset, or that he or she knowingly committed the crime. Without that element of intent, the charge may be unprovable. This is a vital part of criminal defense law, which is why I was pleased to see a recent revision to a Florida Supreme Court opinion on intent under Florida’s kidnapping statute. In Delgado v. State of Florida, Rogelio Delgado stole a pickup truck with a sleeping toddler in the backseat. When the baby and the car were recovered, Delgado was charged with and convicted of kidnapping, among other charges. The Florida Supreme Court struck down the kidnapping charge, however, saying the prosecutors failed to prove Delgado knew the child was in the car.

Juan Gonzalez took his aunt, his girlfriend and the girlfriend’s two-year-old daughter to pick up furniture in Hialeah. Gonzalez and his aunt left the girlfriend and the little girl in the truck, but called the girlfriend into the store to help move the furniture. The girlfriend left the truck running and the doors unlocked, with the sleeping child in her car seat in the back. Delgado and an accomplice stole the truck within minutes. Officers found the truck about thirty minutes later, three miles away, with the radio and some tools missing and some damage to the property. The little girl was upset but unharmed. Delgado was found and charged with grand theft, auto theft, burglary of an occupied conveyance and kidnapping with the intent to commit a felony. At his trial, prosecutors introduced no evidence that Delgado knew the little girl was in the car. Nonetheless, he was convicted of all four charges. He was sentenced to life on the kidnapping charge; thirty years for the burglary; ten years for the auto theft; and time served for theft. He appealed the kidnapping charge to the Third District Court of Appeal, but unsuccessfully.

He had better luck with the Florida Supreme Court. Kidnapping requires intent, the court said; in this case, intent to commit auto theft. However, a test developed by earlier Florida court rulings further requires that kidnappings must not be incidental to another crime, inherent to another crime and have separate significance. The Third District inferred that Delgado must have become aware of the child in the course of stealing property out of the car, and found that the “special danger” posed to her made the kidnapping not incidental to the auto theft. However, the Supreme Court found that this was a misapplication of caselaw. Under the plain wording of the law, it said, defendants must be aware of their victims from the start, or they cannot have the requisite intent to commit kidnapping. Continued confinement after Delgado did (presumably) become aware of her is irrelevant to the intent aspects of kidnapping. Furthermore, the high court said, the prosecutors in Delgado’s original case had never shown that he knew the child was in the truck when he entered it. In fact, a detective’s testimony supports the idea that it would be difficult to see her until specifically looking into the backseat. Thus, the Supreme Court reversed his conviction for kidnapping.

This is not a situation I encounter often in my work as a south Florida theft criminal defense lawyer — fortunately for parents. As the Supreme Court noted, it’s not disputed that the little girl could have been in danger during the theft of the truck or after it was abandoned. However, in the interests of justice, it is vital that prosecutors apply the same rules to this kind of accidental kidnapping that they would to any other crime. And under Florida law, the intent of the defendant matters. In fact, the high court suggested near the end of the opinion that Delgado could also have successfully challenged the “occupied” portion of his conviction for burglary of an occupied vehicle. As a Fort Lauderdale theft criminal defense attorney, I appreciate that the court system distinguishes between accidental and intentional crimes and is willing to reduce sentences accordingly.

Based in downtown Miami, Seltzer Law, P.A., represents people across Florida who are accused of serious crimes. For a free, confidential evaluation of your case, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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