Conner v. State
Decision Date | 28 June 2002 |
Parties | Barry Lydell CONNER v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
David A. Hatfield, Eufaula, for appellant.
Bill Pryor, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
Pursuant to a plea agreement with the State, Barry Lydell Conner pleaded guilty to escape in the third degree, a violation of § 13A-10-33, Ala.Code 1975. In accordance with the plea agreement, he was sentenced, as a habitual offender, to 10 years' imprisonment; the sentence was split and he was ordered to serve 3 years in confinement followed by 5 years on probation.
Before pleading guilty, Conner expressly reserved the right to appeal the trial court's denial of his motion to dismiss the indictment on the ground that his actions constituted the misdemeanor offense of failing to remain within the extended limits of confinement or failing to return to the place of confinement within the time prescribed, a violation of § 14-8-42, Ala.Code 1975, rather than the felony offense of escape in the third degree.
The record reflects that in 1999, Conner was convicted of robbery in the third degree and of theft of property in the second degree,1 and he was placed on probation. On January 30, 2001, his probation was revoked. While waiting to be transferred to the custody of the Department of Corrections, Conner was housed in the Barbour County jail, where the sheriff allowed him to participate in the county's work-release program. On March 4, 2001, after being informed that he would be transferred the following day, Conner went to his place of employment. However, when the van arrived at 7:10 p.m. to pick up the inmates and return them to the county jail, Conner was not at the work site. He turned himself in to authorities on March 12, 2001, and he was subsequently indicted for escape in the third degree.
Conner argues that because he was a state inmate on work release in county custody at the time he escaped, he could not be convicted of escape in the third degree under § 13A-10-33, but could be convicted only of the misdemeanor offense defined in § 14-8-42.
This section is contained in Title 14, Chapter 8—"Temporary Release Programs," under Article 2—"Work Release for County Inmates and State Inmates in County Custody." (Emphasis added.) Section 14-8-43 provides that "[a]nyone violating any of the provisions of this article shall be guilty of a misdemeanor."
With respect to § 14-8-42, "[t]his court has consistently held that a `county inmate or a state inmate in county custody who fails to return from work release is guilty of only a misdemeanor.'" Cork v. State, 603 So.2d 1127, 1128 (Ala.Crim.App.1992), quoting Webb v. State, 539 So.2d 343, 345 (Ala.Crim.App.1987)(some emphasis in Cork; some emphasis added). See also Moncrief v. State, 551 So.2d 1175 (Ala. Crim.App.1989); Nichols v. State, 518 So.2d 851, 852 (Ala.Crim.App.1987); Allen v. State, 481 So.2d 418, 419 (Ala.Crim.App. 1985); and Alexander v. State, 475 So.2d 625 (Ala.Crim.App.1984), rev'd on other grounds, 475 So.2d 628 (Ala.1985).
However, in Webb, supra, this Court, in addressing an equal-protection challenge to the practice of treating state inmates in county custody—who can be convicted only of a misdemeanor for failing to return from work release—differently than state inmates in state custody—who can be convicted of felony escape for failing to return from work release—recognized that the Legislature had not defined "state inmates in county custody" for purposes of Title 14, Chapter 8, Article 2, and it construed that phrase to mean only those state inmates who are in county custody with the approval of the Department of Corrections:
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Ex parte Jones
...escapes from work release is guilty only of a misdemeanor, and it is upon this line of cases that Jones now relies. See Conner v. State, 840 So.2d 950, 951-52 (Ala.Crim.App.2002), Terrell v. State, 621 So.2d 402 (Ala.Crim.App.1993), Cork v. State, 603 So.2d 1127, 1128 (Ala.Crim.App.1992), M......
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U.S. v. Lowery
...as a "violent felony." Alabama courts have routinely upheld convictions for similar conduct under § 13A-10-33. E.g., Conner v. State, 840 So.2d 950 (Ala.Cr.App.2002) (upholding conviction for escape, 3rd degree, when defendant left his place of employment and failed to return to the county ......
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