STATE OF FLORIDA, APPELLANT,
v.
JAMES E. FULKERSON, APPELLEE
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The State appeals the dismissal of an escape charge against Fulkerson, who left jail after being held beyond the statutory limit for fugitive confinement and then arrested on a Governor's warrant for extradition.
A person cannot be convicted of escape if they are not lawfully confined at the time of their departure, even if they are later arrested on a Governor's warrant for extradition.
[1] An order dismissing an information is in the nature of a final judgment, and the state's right of appeal is not derived from Rule 6.3, F.A.R.
[2] The Florida Constitution provides that rules of appellate procedure take precedence over statutes when the right to review is interlocutory in nature.
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Join FLexlaw to unlock all legal intelligenceFulkerson was initially held on a fugitive warrant for 30 days, then arrested on a Governor's warrant for extradition. He escaped from jail after this…
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MANN, Chief Judge.
ON JURISDICTION
I erred in State v. Redden, Fla.App.2nd 1972, 269 So. 2d 415, and persuaded my colleagues to concur, in determining that the rule of State v. Smith, Fla. 1972, 260 So. 2d 489, deprived the State of its appeal as a matter of right from orders dismissing in-formations. We granted certiorari in Redden and quashed the order under review, so no harm is done, but we specifically recede from that decision.
An order dismissing an information is in the nature of a final judgment and the state’s right of appeal is not derived from Rule 6.3, F.A.R., 32 F.S.A. That rule seems to have arisen at a time when a variety of appeal times could be found in the Florida Appellate Rules and fixed a thirty day appeal time for certain interlocutory appeals by the state. See Nash, Florida Appeal Times, 16 Miami Law Review 24 (1961). Some appeals provided for in Fla.Stat. §§ 924.07, and 924.071 F.S.A. remain unprovided for by the rule. Therefore, we would continue to think that State v. Smith would govern those cases in which the right to review is : interlocutory in nature and that the rule would take precedence over the statute, as the Constitution provides. Fla.Const. Art. V, § 5(3) F.S.A. See State v. Matney, Fla.App.1st 1970, 236 So. 2d 166.
On the question whether Fulkerson escaped lawful confinement, we do not find the briefs enlightening. There is no question of the lawfulness of confinement in State ex rel. Wilson v. Culver, Fla.1959, 110 So. 2d 674, the only case cited by the state. While the cases cited on behalf of the appellee make it clear that lawfulness of custody is an essential element to be proved, they do not shed much light on the lawfulness of the custody in this peculiar situation.
Consequently, we retain jurisdiction over this appeal and direct that the state file within thirty days a supplemental brief on the merits. The appellee is allowed twenty days thereafter to file a brief, whereupon the court will consider the merits without further oral argument. See Rule 3.10(e) F.A.R., 32 F.S.A. HOBSON, J., and COWART, JOE A, Jr., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Pearce, 336 So. 2d 1274 (Fla. 1st DCA 1976)…he appellate delay will be better judged after the appeal, when all the facts are known, than before. The present appeal was authorized by § 924.07(1), F.S., because it was taken from a final order dismissing an information. See State v. Fulkerson, 300 So. 2d 275 (Fla.App. 2d, 1973). Unlike the case in State v. Williams, 254 So. 2d 548, 287 So. 2d 415 (Fla.App. 2d, 1971, 1973), a trial of the charges against these appellees has been and is impossible until our mandate restores the information in the trial co…
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Burgess v. State, 313 So. 2d 479 (Fla. 2d DCA 1975)…s opinion in Daniel v. State, Fla.App.2d 1961, 132 So. 2d 312, requiring law enforcement officers to make known their official capacity before making an arrest, and with the philosophy of this court’s opinion in State v. Fulkerson, Fla. App.2d 1974, 300 So. 2d 275, that one imprisoned under some color of law is not entitled to resort to self-help but rather may apply for his release through regular channels of the law.2 In our role it is not appropriate to enunciate a rule of law which departs from the establ…
Authorities Cited
- State v. Smith, 260 So. 2d 489 (Fla. 1972)
- State v. Matney, 236 So. 2d 166 (Fla. 1st DCA 1970)
- State ex rel. David L. Wilson v. Culver, 110 So. 2d 674 (Fla. 1959)
- State v. Elliott Redden, Jr., 269 So. 2d 415 (Fla. 2d DCA 1972)