Brown v. State, 92-0718
| Decision Date | 25 August 1993 |
| Docket Number | No. 92-0718,92-0718 |
| Citation | 623 So.2d 800 |
| Parties | 18 Fla. L. Weekly D1875 Michael BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
We grant the motion, withdraw our earlier opinion and substitute the following.
The state originally charged appellant by information with three counts of aggravated assault with a firearm and one count of escape. Prior to trial the state nolle prossed two of the assault counts. Appellant having been convicted of one count of aggravated assault with a firearm and of escape does not challenge the former. He seeks reversal of his conviction for escape and claims error in his sentencing. We agree, reverse the conviction for escape and remand for resentencing.
At trial, Officer Anthony Jones testified that on June 5, 1991, at approximately 3:30 a.m., he received a complaint from two unidentified women. The women identified appellant as the person involved in their complaint. As appellant passed by the scene, Jones asked him "to stop and come back to him." When appellant kept walking, Jones followed behind him and repeatedly asked him to stop. As Jones got closer, appellant began to run and pulled a small handgun from his waistband. Appellant ignored Jones' requests to stop and place the gun on the ground. As Jones was pursuing appellant over a fence, appellant turned around and fired a shot. Jones lost sight of appellant when he took cover behind a satellite dish.
Officer John Minton, who was in the area of the pursuit, observed appellant between two houses. As he shined his spotlight in appellant's direction, appellant "took off." Minton eventually realized that appellant might be hiding in one of the large garbage cans located alongside some houses. When he removed the cover of the first can, he located appellant hiding inside. Minton "backed off real quick" and drew his revolver. Minton asked appellant to step out of the can, turn around, and lie face down on the ground. Appellant stepped out of the can, turned around, and once again took off running.
Upon hearing on the radio that appellant was headed toward a school, Officer Jones positioned his vehicle to the side of the school gymnasium in the hope that appellant would run past him in order to gain access to the street. As appellant ran toward him, Jones tackled appellant and placed him under arrest. While appellant did have bullets in his pocket at the time of arrest, police never recovered the handgun.
After the jury found appellant guilty as charged, the trial court adjudicated him accordingly and sentenced him to three years imprisonment (for aggravated assault with a firearm) to be followed by three years probation (for escape). The instant appeal followed.
Appellant contends that the trial court erred in denying his motion for judgment of acquittal upon the charge of escape because the state's evidence was insufficient to sustain a conviction for that offense. The statutory definition of escape is found in chapter 944, Florida Statutes (1991) ("The Florida Corrections Code of 1957"). Section 944.40, Florida Statutes (1991), under which appellant was convicted, provides as follows:
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, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.
(Emphasis added). Section 944.02(5), Florida Statutes (1991), defines "prisoner" as:
[A]ny person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed to any municipal or county jail or state prison, prison farm, or penitentiary, or to the custody of the department, as provided by law.
(Emphasis added.)
In State v. Ramsey, 475 So.2d 671 (Fla.1985), the defendant appealed his conviction for escape, alleging that the legislature did not, by this statute, intend to punish the conduct of fleeing from an arresting officer. The defendant had been stopped for several traffic infractions. While making a routine computer check, the officer learned of two outstanding capiases against the defendant. He then placed the defendant under arrest and instructed him to put his hands on the trunk of the patrol car. The defendant turned around and fled from the scene. The defendant had not been restrained and the officer had not yet removed his handcuffs from their carrying case.
In affirming the defendant's conviction, the Ramsey court held that for a conviction under the escape statute, the state need show only (1) a right to legal custody, and (2) a conscious and intentional act of the defendant in leaving the established area of such custody. Id. at 672 (quoting State v. Akers, 367 So.2d 700 (Fla. 2d DCA 1979)). The court reasoned that both a literal interpretation of the words of the statute and the legislative intent lead 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, i.e., when he is placed under arrest. Id. at 672-73.
The state argues that it did present sufficient evidence from which the jury could determine that appellant was in custody at the time of his escape. While appellant was never informed that he was under arrest nor physically restrained in any way, the state apparently argues that the instant facts constitute a "de facto" arrest. The state relies on Johnson v. State, 536 So.2d 1045 (Fla. 1st DCA 1988), rev. denied, 542 So.2d 1333 (Fla.1989), where the court stated that the continuing validity of Ramsey "means that the escape statute...
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