Pumphrey v. StatePumphrey v. State
Lead Opinion
Joseph Pumphrey appeals his conviction for escape, while the state cross-appeals on the issue of the trial court’s downward departure from the sentencing guidelines. We affirm the conviction, but reverse and remand for resentencing.
The record indicates that the appellant was originally charged by information with three counts of grand theft in Cаse No. 85-1897, one count of uttering and one count of forgery in Case No. 85-2088, and two counts of grand theft and two counts of uttering in Case No. 85-4220. On December 5, 1985 he entered pleas of nolo сontendere to all counts, in exchange for a cap of five years incarceration and the state’s agreement to nolle prosse a fourth case. The trial court (Judge Davey) accepted the plea, withheld adjudication, ordered a presentence investigation and set sentencing for January 24, 1986. The court also granted appellant’s request for a 24-hour furlough from jail to attend to a family matter at his grandmother’s house, but warned appellant that “if you don’t come back, that will be an additional offense and this plеa negotiation is out the window.” Appellant failed to return until January 7, 1986, at which time he voluntarily turned himself in to the Leon County Jail. Appellant was charged by information with escape. Beсause of his failure to return, Judge Davey rejected the plea agreement and sentenced appellant to two consecutive five-year terms of imprisonment in two of thе cases and a concurrent five-year term in the third case. Those sentences were later appealed to this court.
With regard to the escape charge, appellant was tried and found guilty. Although the presumptive guideline sentence was 12-17 years, the trial court (Judge Miner) sentenced appellant to only two years, giving the following written reason for the downward departure:
The defendant was charged with several felonies in other cases and entered a negotiated plea of nolo contendere with an agreement for a five year sentence. After entering those pleas the defendant was released on a 24-hour furlough but failed to return to the jail within the specified time. As a result of not returning оn time the defendant was sentenced to ten years instead of five on the cases from which he was furloughed and, in addition, was convicted of escape in this case for the samе failure to return from the furlough on time. This Court believes that the defendant has, to a large extent, already been punished for the conduct constituting this offense and finds that to be a sufficient rеason to depart from the recommended guidelines sentence of 12 to 17 years.
In appealing his conviction for escape, Pumphrey argues that he was not “in custody” at thе time Judge Davey granted the 24-hour furlough, but instead was merely a pretrial detainee, released on his own recognizance for a limited period of time. He thus concludes that he did not meet the definition of “prisoner” found in section 944.02(5), Florida Statutes (1985), and could not have been found guilty of escape as defined in section 944.40, Florida Statutes (1985).
We disagree with appellant’s argument. According to section 944.40, “[a]ny prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, оr being transported to or from a place of confinement who escapes or attempts to escape from such confinement” is guilty of escape. The term “prisоner” is defined in section 944.02(5) as “any person who is under arrest and in the lawful custody of
At the time his furlough was granted by Judge Davey, appellant hаd been arrested on felony charges and was being held in the Leon County Jail pending adjudication and sentencing, thus satisfying both conditions of the first definition of prisoner found in section 944.02(5). The fact that he was not physically present in the jail at the time of his failure to return does not defeat this conclusion. In Johnson v. State,
As to the issue on cross-appeal, we reverse. Judge Miner’s downward departure sentence was based on his belief that the appellant had already been punished for the escape by Judge Davey’s rejection of the plea agreement reached in the other three cases. As mentioned above, the sentence imposed by Judge Davey was appealed separately, and in Pumphrey v. State,
Dissenting Opinion
dissenting.
I respectfully dissent. I would revеrse appellant’s escape conviction. The majority’s application of the escape statute to the instant circumstances is, in my view, strained and unwarranted.
Essentially, prior to final disposition of the case, the trial judge decided to release the defendant on his own recognizance with the condition that he report back to the cоunty jail in 24 hours. The defendant’s failure to appear as required was not an escape. It was a “failure to appear” under Section 843.15, Florida Statutes (1985).
Section 843.15, by its terms, applies to releases pursuant to Chapter 903 which, in turn, provides for “all forms of pretrial release.” Section 903.011, Florida Statutes (1985). It is very clear to me that what
The apparent theory underlying the state’s urging of the application of the еscape statute to the instant situation is predicated upon a concept of an “extension of the limits of confinement” of the defendant. While the legislature has provided for the “extension of the limits of confinement” for county prisoners and for state prisoners via Sections 951.24 and 945.091, respectively, which sections specifically provide that the willful failure to remain within the extended limits of confinement shall be deemed an escape, the provisions of those sections apply only to prisoners who have been sentenced,.
By being permittеd to proceed on the basis of an “escape,” the state has, in effect, improperly been allowed to elevate a pretrial failure to appear from a third degree felony to a second degree felony. I would reverse.
Notes
. Both the state and the trial court relied upon the provisions of Section 951.24. The information charging the offеnse of escape included the following allegation: "... and being released temporarily pursuant to Sections 951.24(2) and 951.24(4)_” In its judgment, the trial court specified those sections and Seсtion 944.40 as the "offense statute numbers.”
Concurrence Opinion
concurring:
I concur in the majority opinion; however, I would direct that the trial judge, upon remand, either sentence appellant within the recommended guideline range, or base his departure upon circumstances or factors which reasonably justify the mitigation of the sentence. § 921.001(5), Fla. Stat., as amended by chapter 87-110, Laws of Florida.