ANTHONY OZER JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Johnson appeals his conviction for escape under Florida Statute § 944.40, arguing there was a fatal variance between the information charging him with escaping from the Alachua County Adult Detention Center and the evidence showing he actually escaped from a hospital. The court affirmed, holding that lawful confinement extends beyond the physical jail facility to include custody during authorized off-site treatment.
There was no fatal variance because the term 'confinement' under § 944.40 is not narrowly limited to physical presence in the jail itself. A prisoner committed to jail and in its lawful custody remains confined for purposes of the escape statute even when temporarily absent for authorized purposes such as medical treatment.
[1] A prisoner's lawful confinement for escape purposes extends beyond the physical confines of a detention facility to include periods of temporary absence for medical treat…
[2] A variance between the gravamen of an information and the evidence adduced at trial is not fatal if the evidence supports the essential elements of the charged offense.
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Join FLexlaw to unlock all legal intelligence“We do not believe the term 'confinement' is narrowly limited to the actual physical presence in the jail. Appellant had been committed to the jail and was in the lawful custody of the jail. This confinement may extend to the hospital from which appellant escaped.”
The court's central holding that confinement extends beyond the physical jail facility when the prisoner is in lawful custody of jail authorities.
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Join FLexlaw to unlock all legal intelligenceJohnson was arrested and taken to the Alachua County Adult Detention Center for booking. During the booking process, he became ill and was escorted by…
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PER CURIAM.
Appellant seeks review of the judgment and sentence for escape, Section 944.40, Florida Statutes (1975). Appellant contends he is entitled to reversal because of an alleged variance between the gravamen of the information and the evidence adduced at trial.
The information alleged that appellant “was lawfully confined in the Alachua County Adult Detention Center, . and being then and there so confined, did unlawfully escape from such confinement, . .” The evidence revealed that appellant was arrested and taken to the Ala-chua County Adult Detention Center. During the booking process, appellant apparently became ill and was escorted by a police officer to the emergency room of Alachua General Hospital for treatment. Appellant escaped while at the hospital. Appellant asserts there is a fatal variance because the evidence did not reveal that appellant escaped from the confinement of the Alachua County Adult Detention Center. Section 944.40, Florida Statutes (1975), provides:
“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-of the second degree, . . . ”
We do not believe the term “confinement” is narrowly limited to the actual physical presence in the jail. Appellant had been committed to the jail and was in the lawful custody of the jail. This confinement may extend to the hospital from which appellant escaped. Although Sections 945.091 and 951.24, Florida Statutes (1975), specifically recognize that a prisoner may be regarded as “confined” even though not physically present in the correctional facility for the purposes of work-release programs and other rehabilitative purposes, the existence of these statutes does not require a narrow definition of the term “confinement.”
Accordingly, there was no fatal variance between the information and the evidence adduced at trial. Therefore, the judgment and sentence are AFFIRMED.
MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Ramsey, 475 So. 2d 671 (Fla. 1985)…erpretation of the words of the statute itself leads to the conclusion that one who meets the definition of prisoner is being transported to a place of confinement at the point in time when he becomes a prisoner. [*673] The case of Johnson v. State, 357 So. 2d 203 (Fla. 1st DCA), cert. denied, 362 So. 2d 1054 (Fla.1978), is analogous to the instant case. The defendant in Johnson was already confined in a county jail but became ill inside the jail. He was escorted to the hospital where he subsequently escaped.…
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State v. Akers, 367 So. 2d 700 (Fla. 2d DCA 1979)…rts 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 confinement in jail. Johnson v. State, 357 So. 2d 203 (Fla. 1st DCA 1978). For conviction under the escape statute, the state need show only (1) the right to legal custody and (2) a conscious and intentional act of the defendant in leaving the established area of such custody. Watford v. State, 353 So.…
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Williams v. State, 416 So. 2d 493 (Fla. 5th DCA 1982)…been transported from the jail to the hospital emergency room, when the alleged escape occurred. The fact that the escape was from the hospital rather than directly from jail is not determinative of the issue raised by this appeal. Johnson v. State, 357 So. 2d 203 (Fla. 1st DCA), cert. denied, 362 So. 2d 1054 (Fla.1978). The issue is whether or not the state established a prima facie case sufficient to sustain an escape conviction merely by showing that the defendant was confined in a penal institution at the…1 / 2
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