Dorsey v. StateDorsey v. State
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- Before:
- Blackburn
A jury found Jim Dorsey guilty of felony escape, and the trial court imposed a ten-year sentence. 1 2 Contesting the legal definition of the term “conviction” utilized at his trial, Dоrsey filed this appeal. After applying the. controlling law to these most unique facts, we reverse the judgment, vacate the sentence, and remand for resentencing.
On May 5, 1998, Dorsey pleaded guilty to charges under Indictment No. 97R506, those being, burglary, four counts of entering an auto, financial transaction card fraud, and two counts of financial transaction card theft. Dorsey’s sentencing was deferred to a later date. The next day, May 6, detention officers at the jail, relying on Dorsey’s representations that he was due in court, transported him to the courthouse. Apparently, a construction crew had left a door on an upper floor unlocked, and Dorsey managed to leave undetected. After his absence was discovered “at around noontime,” investigators proceeded to thе house of Dorsey’s girlfriend. There, officers found Dorsey hiding underneath a bed. The State indicted, tried, and convicted him for felony escape, which conviction fоrms the basis of the present appeal.
The State’s reliance upon Bowers v. Moore, supra, is misplaced because that case decided the validity of a guilty plea obtained after the trial court had failed to inform the defendаnt of his right to confront witnesses and his privilege against self-incrimination should he elect to proceed to trial. In deciding that Moore’s rights were violated, our Supreme Court quoted this sentence from Boykin v. Alabama: 3 “A plea of guilty is more than a mere confession of certain acts, ‘it is itself a conviction; nothing remains but to give judgment and determine punishment.’ ” Bowers, supra at 894 (1). But, in so stating, the U. S. Supreme Court was not saying that the two terms, i.e., a guilty plea and a judgment, are synonymous, but was analogizing to the specific constitutional safeguards required for admitting a confession. After explaining those prerequisites, the Supreme Court observed:
A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege [s] against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be an intentional relinquishment or abandonment of a known right or privilege. Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has bеen obtained in violation of due process and is therefore void.
(Citation and punctuation omitted.) Boykin, supra at 243, n. 5. Thus, the dicta in Bowers v. Moore that quoted Boykin sheds no light on the legal analysis, here. Neither case holds that a guilty plea constitutes а final judgment of conviction.
Before the present case proceeded to the jury, the trial court entered a finding that “Mr. Dorsey’s plea of guilty on May 5,1998, did amount to a conviction for the purposes of this statute under which he has been indicted; that is [OCGA §] 16-10-52. (a) (1).” Dorsey objected, arguing that the court had eviscerated his sole defense that he had not been under any sentence when he escaped. Dorsey also specifically objected to the trial court’s refusal to givе his requested charge on misdemeanor escape as a lesser included offense.
In his sole enumerated error, Dorsey contends that the trial court еrred in ruling as a matter of law that the guilty plea at issue was a “conviction” within the meaning of the escape statute. We agree.
At the time of trial,
At trial, thе State’s sole exhibit was Dorsey’s guilty plea to Indictment No. 97R506. Absolutely no evidence was offered as to any misdemeanor conviction or other felony cоnviction. The verdict form indisputably establishes that the jury found Dorsey guilty of Count 1, a charge of felony escape predicated on Dorsey’s “conviction” in Indictmеnt No. 97R506.
“Criminal statutes are to be strictly construed. The liberty of a citizen is not to be abridged by implication, nor is any statute, making an act a crime, to be extended beyond its express terms.”
Welch v. State.
5
As expressly defined in the criminal Code, a “‘[c]onviction’ includes a final judgment of conviction entered upon a verdict or finding of guilty of a crimе or upon a plea of guilty.”
“[T]he fact оf conviction prior to escape is an essential element of the crime [of felony escape], and it may be alleged and proved. [Cits!]”
Gillespie v. State.
8
“[P]roof оf the prior conviction is required in felony escape trials.”
Fears v. State.
9
But here, the record lacks proof of that essential element because no final judgment of conviction had yet been entered upon Dorsey’s plea of guilty. See
Blackstock v. State.
10
Since final judgment had not been pronounced, Dorsey had an abso
lute right to withdraw his рlea of guilty under
As Dorsey concedes, misdemeanor punishment is appropriate under the facts of this case. We agreе. By law, “[a] prisoner may be convicted of felonious escape only where his previous confinement is pursuant to a felony or misdemeanor conviсtion and ‘all other escapees must receive misdemeanor punishment.’ ”
Smith v. State
11
Under the facts of this case, as Dorsey admits, he was guilty of misdemeanor escaрe as a lesser included offense of felony escape. Although the State failed to prove that he escaped following a conviction, therеby supporting a finding of felony escape, it nonetheless proved the act of escape itself, thereby supporting a finding of misdemeanor escape. See generally
Judgment reversed. Sentence vacated and case remanded for resentencing.
Notes
Dorsey’s sentence was later amended under
Bowers v. Moore,
Boykin v. Alabama,
Pruitt v. State,
Welch v. State,
Cotten v. State,
Leslie v. State,
Gillespie v. State,
Fears v. State,
Blackstock v. State,
Smith v. State,