KENNETH CHARLES BROCHU, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Brochu appeals his convictions for three counts of robbery, unauthorized use of a vehicle, and escape. The Florida appellate court affirmed the robbery and vehicle convictions but reversed the escape conviction because the State failed to prove Brochu was a prisoner legally committed to a state penal institution at the time of escape.
The conviction for escape must be set aside because the State failed to prove an essential element of the crime: that Brochu was a prisoner who had been convicted and sentenced to a state prison, prison farm, penitentiary, or to the custody of the division as provided by law. The convictions for robbery and unauthorized use of vehicle are affirmed.
[1] A conviction for escape under Florida Statute § 944.40 requires proof that the defendant was a prisoner convicted and sentenced according to law.
[2] The State must prove that a defendant was a convicted and sentenced prisoner to sustain a conviction for escape.
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Join FLexlaw to unlock all legal intelligence“The sole error in this appeal lies with the insufficiency of the evidence to support the judgment of conviction of escape as the State failed to prove that the defendant was a prisoner in custody serving a sentence.”
Establishes the central issue on appeal—the lack of proof regarding Brochu's legal status as a committed prisoner.
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Join FLexlaw to unlock all legal intelligenceBrochu was convicted of three counts of robbery, unauthorized use of a vehicle, and escape from Volusia County Convict Camp. He was sentenced to three…
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By this appeal, appellant Brochu challenges judgments of conviction for three counts of robbery, the unauthorized use of a vehicle, and escape. Pursuant to the judgments of conviction. Brochu was sentenced to three concurrent 30-year sentences for the three counts of robbery, six months for the unauthorized use of a vehicle, and two years for the escape.
The sole error in this appeal lies with the insufficiency of the evidence to support the judgment of conviction of escape as the State failed to prove that the defendant was a prisoner in custody serving a sentence.
Florida Statute § 944.40 (1969), F.S.A. was the controlling statute in force at the time Brochu was put to trial on the charge of escape. The subject statute provided as follows:
“Escapes; penalty. — Any prisoner 1 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 10 years. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.” (Emphasis supplied.)
The cited statutes 2 establish without contradiction that an essential element of the crime of escape was proof that the person charged had been convicted and sentenced to a state prison, prison farn^ or penitentiary, or to the custody of the division, *287as provided by law. In the instant case such proof was wholly lacking on the part of the State and thus the conviction must be set aside. It is uncontroverted that Brochu escaped from the Volusia County Convict Camp, but it is likewise uncontro-verted that the State never established that he was a prisoner “convicted and sentenced” in accordance with the law of this sovereign at the time he departed from the confines of the camp.
The judgments of conviction and sentences of three counts of robbery, and the unauthorized use of a vehicle are affirmed. The judgment of conviction and sentence of two years for the crime of escape is set aside.
Affirmed in part and reversed in part.
SPECTOR, C. J., and CARROLL, DONALD K., J., concur.
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State v. Akers, 367 So. 2d 700 (Fla. 2d DCA 1979)…t shall be guilty of a felony. We acknowledge that prior to the amendment of these statutory provisions in 1971, only persons who were convicted and sentenced could violate the provisions of Section 944.40, Florida Statutes (1969). Brochu v. State, 258 So. 2d 286 (Fla. 1st DCA 1972). Florida courts have interpreted the present escape statute to include confinement after arrest but prior to conviction and sentencing. Estep v. State, 318 So. 2d 520 (Fla. 1st DCA 1975). Such confinement is not limited to confin…
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Williams v. State, 416 So. 2d 493 (Fla. 5th DCA 1982)…ll continue to read into section 944.40, Florida Statutes (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); Ha…
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VAN DEN Bliek v. State, 281 So. 2d 218 (Fla. 4th DCA 1973)…tion to vacate judgments of conviction for two escapes from the Osceola County Jail. This court, in State v. Benjamin, Fla.App.1972, 267 So. 2d 348, cert. dismissed Fla. 1972, 270 So. 2d 20, agreed with the decision in Brochu v. State, Fla.App.1972, 258 So. 2d 286, which held that in accordance with the law in effect at the time of the escape it was essential that the person so charged was a prisoner who had been “convicted and sentenced”; it was not sufficient to show that at the time of his escape defendant…
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