JIMMY VICTOR ABIGANDO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jimmy Victor Abigando was convicted of attempted escape from jail, but the Florida District Court of Appeal reversed his conviction because the State failed to present evidence that he was in lawful custody on a valid criminal charge or conviction—an essential element of the escape offense.
The conviction must be reversed because proof of lawful custody is essential to a conviction for the crime of escape, and the State presented no competent evidence establishing this element. The cause is remanded for a new trial.
[1] A conviction for attempted escape requires proof that the defendant was in lawful custody on a valid charge or conviction at the time of the attempted escape.
[2] The State must adduce competent evidence establishing lawful custody as an essential element of the crime of attempted escape.
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Join FLexlaw to unlock all legal intelligence“Before one may be charged with the offense of escape, it must be shown that at the time of the alleged escape the prisoner was held in lawful custody on a valid charge of a criminal offense or upon a conviction of a criminal offense.”
Establishes the essential element of lawful custody required for escape convictions, citing Florida Jurisprudence
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Join FLexlaw to unlock all legal intelligenceAbigando was charged with attempted escape from the common jail of Escambia County under Florida statute § 944.40. At trial, the State presented evide…
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Appellant seeks reversal of a judgment of conviction and sentence based upon a jury verdict finding him guilty of the crime of attempted escape from the common jail of Escambia County.
Appellant asserts that the judgment of conviction is fatally defective in that the State failed to adduce at the trial any evidence establishing that at the time of the attempted escape he was in lawful custody on a valid charge or conviction of a criminal offense. The statute under which appellant was charged is as follows:
"Escapes; penalty — Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony, and upon conviction thereof shall be punished by imprisonment of not more than ten (10) years. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.” 1
Appellee concedes, and our examination of the record of the trial confirms, a complete absence of any competent evidence tending to prove this essential element of the offense charged. In outlining the elements of the crime of escape, the author of Florida Jurisprudence says:
“Before one may be charged with the offense of escape, it must be shown that at the time of the alleged escape the prisoner was held in lawful custody on a valid charge of a criminal offense or upon a conviction of a criminal offense. % * * )> 2
In Melton v. Culver, our Supreme Court held:
“ * * * In other words, for attempted escape to constitute a felony, it must be alleged and proved that the prisoner was incarcerated or confined pursuant to a felony charge or conviction. * * * ” 3
The Second District Court of Appeal in Fulford v. State followed the general rule set forth above as follows:
“ * * * Proof of lawful custody is essential to conviction for the crime of escape. King v. State, 1900, 42 Fla. 260, 28 So. 206. Evidence that appellant had been in the custody of the warden of State Road Prison Camp No. 4530 as an inmate for six months prior to his alleged escape did not constitute proof either that such custody was lawful or that appellant is the John Cornelius Ful-ford named in the documents received in evidence against him at the trial.”4
In view of the foregoing disposition of this appeal we find it unnecessary to either comment or pass upon the sufficiency of the proof designed to show that appellant attempted to escape from the common jail of Escambia County as charged in the information.
The judgment appealed is reversed and the cause remanded for a new trial.
JOHNSON, C. J., and RAWLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McGEE v. State, 435 So. 2d 854 (Fla. 1st DCA 1983)…r case service; and 27 Am. Jur.2d, Escape, Prison Breaking, and Rescue, § 7, “Legality of custody, generally.” We have examined the cases relied upon by appellant on this point and find no conflict with the rule we apply here. Cf. Abigando v. State, 239 So. 2d 646 (Fla. 1st DCA 1970); Abbott v. State, 326 So. 2d 204 (Fla. 1st DCA 1976); Estep v. State, 318 So. 2d 520 (Fla. 1st DCA 1975); Fulford v. State, 113 [*859] So. 2d 572 (Fla. 2nd DCA 1959); Haggard v. State, 226 So. 2d 32 (Fla. 4th DCA 1969); Williams…
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Williams v. State, 416 So. 2d 493 (Fla. 5th DCA 1982)…es (1979) the element of “lawful custody” from section 944.02(4), Florida Statutes (1979). . § 944.40, Fla.Stat. (1979). . Abbott v. State, 326 So. 2d 204 (Fla. 1st DCA 1976); Brochu v. State, 258 So. 2d 286 (Fla. 1st DCA 1972); Abigando v. State, 239 So. 2d 646 (Fla. 1st DCA 1970); Maggard v. State, 226 So. 2d 32 (Fla. 4th DCA 1969); Fulford v. State, 113 So. 2d 572 (Fla. 2d DCA 1959). Accord, United States v. DeCicco, 415 F. 2d 799 (5th Cir. 1969); Harding v. State, 248 Ark. 1240, 455 S.W. 2d 695 (1970);…
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State v. Fulkerson, 300 So. 2d 276 (Fla. 2d DCA 1974)…have stated that for one to be convicted of the crime of escape, he must be lawfully confined. E. g., Fulford v. State, Fla.App.2nd, 1959, 113 So. 2d 572; Maggard v. State, Fla.App.4th, 1969, 226 So. 2d 32; and Abigando v. State, Fla. App.lst, 1970, 239 So. 2d 646. The Supreme Court in State v. Culver, Fla. 1959, 110 So. 2d 674, appears to have amplified this statement when it said: “The fact that petitioner has never been tried for the felony with which he was charged at the time of his escape or, even, tha…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State ex rel. David L. Wilson v. Culver, 110 So. 2d 674 (Fla. 1959)
- King v. State, 42 Fla. 260 (Fla. 1900)
- Fulford v. State, 113 So. 2d 572 (Fla. 2d DCA 1959)
- Melton v. Culver, 107 So. 2d 378 (Fla. 1958)