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State v. Fielder6/22/2005
the CSP II, based on one factual episode that did not involve restraint apart from that necessary to the CSP. Id. 15, 17. We first analyzed the two CSP offenses and found that they had different elements. Id. 19. We therefore presumed different offenses. Id. However, we noted that both methods of committing CSP II were simply ways of increasing the degree of seriousness of a CSP III offense, and therefore we held that both charges of CSP II could not stand. Id. 20. In deciding which type of CSP II to let stand, because there was no separate kidnapping, we held that the legislature did not intend to permit either CSP II (in the commission of a felony) or the separate second degree felony of kidnapping whenever there is evidence of the third degree felony of CSP III. Id. 21. This reasoning is inapplicable in this case because of the difference in the degrees of the crimes at issue. In other words, it was the seriousness of the offenses of CSP II and kidnapping, both second degree felonies involving nine-year sentences, that motivated our belief in Crain as to what the legislature intended. Accordingly, we disagree with Defendant that Crain requires a holding that Defendant's double jeopardy rights were violated here.
CONCLUSION
We reverse Defendant's convictions of CSP III, aggravated burglary, and false imprisonment and remand them for a new trial.
IT IS SO ORDERED.
LYNN PICKARD, Judge
WE CONCUR:
CELIA FOY CASTILLO, Judge
RODERICK T. KENNEDY, Judge
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