GERALD A. VAN DEN BLIEK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the escape statute's requirement of a "convicted and sentenced" prisoner applied to escapes occurring after a 1969 amendment, but not to those before it.
The defendant appealed the denial of his motion to vacate convictions for two escapes. One escape occurred before a 1969 amendment to the escape statu…
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The defendant appeals the trial court’s denial of his motion 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 was merely “charged” with the crime for which he was then being held.
In the case sub judice defendant was convicted of one escape in 1970. Prior to 1969, F.S. Section 944.40, F.S.A., the escape statute, declared that the substantive offense of escape was committed without regard to whether the prisoner was confined pursuant to a “charge” or pursuant to a “conviction” of a crime. However, in 1969 the statute was amended and the word “charge” was deleted, which led to the decision in Brochu v. State, supra.
Based upon our opinion in State v. Benjamin, supra, we therefore conclude that insofar as the judgment of conviction and sentence of four years for the crime of escape in Case No. 82-67, having occurred prior to the 1969 amendment of Section 944.40, said judgment is affirmed on the authority of State ex rel. Wilson v. Culver, Fla.1959, 110 So.2d 674. However, the judgment and conviction of sentence for the crime of escape in Case No. 147-70, having occurred subsequent to the amendment of Section 944.40, as heretofore noted, said judgment is vacated and set aside and the cause remanded for further proceedings not inconsistent herewith. Cf. Naylor v. State, Fla.App.1971, 250 So.2d 660.
Affirmed, in part; reversed, in part.
OWEN, C. J., and WALDEN and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Reverethus C. Burgess v. State, 283 So. 2d 399 (Fla. 4th DCA 1973)…ned a prisoner as “ . . . any person convicted and sentenced by the courts . ” Defendant did not fall within the statutory definition of prisoner at the time because he had not yet been sentenced. We reverse upon authority of Van Den Bliek v. State, 281 So. 2d 218, Fourth District Court of Appeal Opinion issued August 6, 1973; Brochu v. State, Fla.App.1972, 258 So. 2d 286 and State v. Benjamin, Fla.App.1972, 267 So. 2d 348. Reversed. OWEN, C. J., and MAGER, J., concur.…
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Rothrock v. Louie L. Wainwright, 286 So. 2d 240 (Fla. 4th DCA 1973)…that he could not be convicted of escape because he was in custody awaiting trial on another charge has merit. This court in State v. Benjamin, Fla.App.1972, 267 So. 3d 348, cert. dism, Fla., 270 So. 2d 20, and Van Den Bliek v. State, Fla.App.1973, 281 So. 2d 218 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 senten…
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State v. VAN DEN Bliek, 287 So. 2d 680 (Fla. 1973)…Certiorari denied. 281 So. 2d 218. CARLTON, C. J., and ERVIN, Mc-CAIN and DEKLE, JJ., concur. ROBERTS, ADKINS and BOYD, JJ., dissent.…
Authorities Cited
- State ex rel. David L. Wilson v. Culver, 110 So. 2d 674 (Fla. 1959)
- Brochu v. State, 258 So. 2d 286 (Fla. 1st DCA 1972)
- Naylor v. State, 250 So. 2d 660 (Fla. 2d DCA 1971)
- State v. Benjamin, 267 So. 2d 348 (Fla. 4th DCA 1972)
- State v. Pitofsky, 267 So. 2d 348 (Fla. 3d DCA 1972)
- Pasley v. Grant Sholk Constr. Co., 270 So. 2d 20 (Fla. 1972)
- Cap. Treads & Cas. Reciprocal Exch. of the Dodson Ins. Grp. v. Russ, 270 So. 2d 20 (Fla. 1972)