Ex-Hialeah cop convicted of kidnapping homeless man seeks retrial with new defense
An attorney for the former Hialeah police officer convicted of kidnapping a homeless man urged an appeals court on Tuesday to reverse the ex-cop’s conviction, arguing that his prosecution shouldn’t have occurred because the victim was lawfully arrested.
Michael Davis, the lawyer for 30-year-old Rafael Otano, said the kidnapping prosecution should have ended once prosecutors determined during the trial that officers had probable cause to arrest the victim. He also requested that the 3rd District Court of Appeal grant Otano a new trial.
In August 2023, Otano was found guilty of the armed kidnapping of Jose Ortega-Gutierrez, a man known to police and considered a nuisance by shopkeepers at a Hialeah strip mall. Otano was sentenced to five-and-a-half years in prison and is being held at Wakulla Correctional Institution, a medium-security facility just outside Tallahassee.
READ MORE: Fired Hialeah cop convicted of armed-kidnapping a vagrant, to spend 5 1/2 years in prison
On Dec. 17, 2022, Otano and Lorenzo Orfila, another Hialeah cop, were called to a mall at West 19th Avenue and 60th Street by the owners of Los Tres Conejitos bakery, according to prosecutors. They told police Ortega-Gutierrez had been harassing customers.
When the officers arrived, prosecutors say, they put Ortega-Gutierrez in a patrol car and drove him about seven miles away to a remote area outside the city limits. Then, at the end of a street near a wooded area, they beat Ortega-Gutierrez and left him there.
The six-person jury, however, acquitted Otano of taking part in the beating of Ortega-Gutierrez despite convicting him of the armed kidnapping. The trial of Orfila, the other officer, has yet to begin.
Will cop’s conviction be overturned?
In Florida, kidnapping requires prosecutors to prove that a defendant confined another person against their will without lawful authority. At trial, prosecutors admitted that Otano had lawful authority for the arrest, but argued that he lost that authority when he exceeded it, Davis said.
But the issue, Davis told the court, is that Florida law does not define a limit of an officer’s authority. Before 1973, Florida law required police officers to transport an arrested person to a jail without delay. That law, however, was repealed and is no longer on the books, Davis added.
“I understand the court’s angst as to what the current state of the law is. But... the court here is required to apply the law,” Davis said. “And that is really the problem with [Otano’s] prosecution.”
Attorney Katryna Santa Cruz, representing prosecutors before the three-judge panel on Tuesday, called Otano’s appeal a “classic case of fashioning a shield into a sword.” She argued that Otano acted outside lawful authority when he transported Ortega-Gutierrez outside his assigned sector.
“In this case, I would say that lawful authority was exceeded under these circumstances,” Santa Cruz told the court. “...Instead of taking him anywhere to continue the investigation..., [the officers] took him somewhere outside of where they [were supposed] to be to terrorize him.”
This story was originally published September 16, 2025 at 2:56 PM.
