326 A.2d 241 | D.C. | 1974
This is an appeal from a conviction of prison breach under D.C.Code 1973, § 22-2601. After his arraignment on a charge of second degree murder, appellant was held in custody under an order' setting a $20,000 bond for his release. Later this was vacated, and the court ordered that he be released on certain specified conditions so that he could participate, in a work release program. One of the conditions was that he live at Community Correction Center No. 4 operated by the Department of Corrections. Not long thereafter he was released from the facility so that he could make an appearance in court, but appellant failed to return to the correction center that evening as scheduled. Some six weeks later he was arrested on a bench warrant and subsequently indicted for prison breach. Appellant moved to dismiss the indictment on the ground that it did not state an offense and later moved for judgment of acquittal. Both motions were denied.
On appeal appellant contends that having been granted a form of pretrial release he had not been “committed” to a penal institution within the meaning of the statute. We agree.
We have previously held that for the purpose of a prosecution under the prison breach statute a halfway house serves as a .penal institution as to one who has been convicted and committed to the custody of the Attorney General. Armstead v. United States, D.C.App., 310 A.2d 255 (1973). See also United States v. Venable, D.C.App., 316 A.2d 857 (1974).
It remains for us to decide therefore whether appellant was “committed” within the meaning of the section of the D.C. Code under which he was prosecuted. Consequently, we turn to the language of the order signed by the court to determine what his status was while at the halfway house on pretrial release.
YOU ARE HEREBY RELEASED ON THE CONDITIONS INDICATED BELOW:
[x] PERSONAL RECOGNIZANCE. Your personal recognizance, provided that you promise to appear at all scheduled hearings, trials, or otherwise as required by the Court.
YOU ARE RELEASED ON THE FOLLOWING ADDITIONAL CONDITIONS INDICATED BELOW:
[x] 1) SUPERVISORY CUSTODY
You hereby agree to be placed in the custody of . . . who agrees (a), to supervise you in accordance with the conditions below, (b). to use every effort to assure your appearance at all scheduled hearings, trials, or otherwise, and (c). to notify the D. C. Bail Agency immediately in the event you violate any condition of release or disappear. . . .
The form goes on to state where he is to live and with whom, giving address and telephone number. It further provides that he is to obtain a job in five days, remain in the District of Columbia and report for narcotics testing and treatment. Under a heading of “Violation of Conditions” the accused is advised that any violation of the conditions will subject him to revocation of release and prosecution for contempt of court involving a fine of not more that $1,000 or imprisonment for six months or both. This is in accordance with D.C. Code 1973, § 23-1329. Under the heading “Failure to Appear” he is advised that if he fails to appear before a judge or other judicial officer he shall be subject to prosecution. If the original charge was a felony, failure to so appear would subject the accused to “a fine of not more than $5000 and imprisonment for not less than one year and not more than 5 years.” This corresponds to D.C.Code 1973, § 23-1327 relating to pretrial release
While it could be said that when appellant was arrested and was unable to make bond he was “committed”
In so holding we are not unmindful of United States v. Vaughn, 144 U.S.App.D.C. 316, 446 F.2d 1317 (1971), cited by appellee, which held that the Federal Escape Act
Since we lack comparable language in our prison breach statute and in view of the nature of appellant’s status at the time of the offense resulting from his having been conditionally released, we cannot hold that he had been committed so as to bring him within the prison breach statute. The government will not be without remedy in other cases, for, as indicated in the release form, the Congress has adopted legislation specifically providing remedies and penalties for violations of conditions of pretrial release. In the instant case, according to the record, appellant failed to appear in court as scheduled, but he was not charged with that offense. The motion for judgment of acquittal should have been granted. Accordingly, the judgment of the trial court is
Reversed.
. Compare 18 U.S.C. § 3150 (1970), penalties for violation of conditional release by failing to appear.
. See 18 U.S.C. § 3041 (1970).
. 18 U.S.C. § 751(a) (1970).
. United States v. Person, 223 F.Supp. 982 (S.D.Cal.1963).
. 18 U.S.C. § 4082(d) (1970) j)rovides that:
The willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody of the Attorney General punishable as provided in [section 751(a)].
.The Federal Bail Reform Act permits a court to grant pretrial release on condition he return to custody after specified hours. 18 U.S.O. § 3146(a)(5) (1970).