Pumphrey v. State, 71459
| Court | United States State Supreme Court of Florida |
| Citation | 527 So.2d 1382,13 Fla. L. Weekly 433 |
| Docket Number | No. 71459,71459 |
| Parties | 13 Fla. L. Weekly 433 Joseph PUMPHREY, Petitioner, v. STATE of Florida, Respondent. |
| Decision Date | 14 July 1988 |
Page 1382
v.
STATE of Florida, Respondent.
Page 1383
Michael E. Allen, Public Defender and Kathleen Stover, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for respondent.
SHAW, Justice.
We have for review Pumphrey v. State, 512 So.2d 1018 (Fla. 1st DCA 1987), which conflicts with Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the decision of the district court below.
Pumphrey was charged with grand theft, uttering, and forgery. He entered a plea, which was accepted by the trial court. The court withheld adjudication and, prior to sentencing, ordered a presentence investigation. The court also granted Pumphrey's request for a twenty-four hour furlough from jail to gather firewood for his grandmother. Pumphrey failed to return until many days later. On the basis of this failure to return, he was convicted of escape. Due to the presence of a mitigating factor, the trial court departed from the guidelines range of twelve to seventeen years and sentenced Pumphrey to two years imprisonment for this offense. The DCA affirmed the conviction, finding that Pumphrey was a "prisoner" under section 944.02(5), Florida Statutes (1985), which provides:
"[p]risoner" means any person who is under arrest and in the lawful custody of any law enforcement official ...
and that he had "escaped" under section 944.40, Florida Statutes (1985):
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....
However, because it found the trial court's reason for downward departure invalid, the district court reversed and remanded for resentencing, instructing the trial court either to follow the guidelines or to state clear and convincing reasons for departure. Pumphrey's petition for review was granted based on conflict with Williamson, a revocation of probation case in which the district court stated that section 944.40 "requires the prior confinement of a prisoner." Williamson, 388 So.2d at 1347 n. 2. We find that Pumphrey's failure to return from furlough failed to constitute "escape" under this statute.
In reaching its conclusion, the district court relied on Johnson v. State, 357 So.2d 203 (Fla. 1st DCA) (escape upheld where prisoner became ill during booking and, after being escorted to the emergency room, escaped from the hospital), cert. denied, 362 So.2d 1054 (Fla.1978). The Johnson court reasoned:
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
Page 1384
the lawful custody of the jail. This confinement may extend to the hospital from which appellant escaped.Id. at 204. Adopting the Johnson rationale, the court below concluded:
Under the rationale of Johnson, appellant's confinement was not limited to his actual presence in the Leon County Jail, but extended for a 24-hour period to include the area of the grandmother's house, from which he unlawfully escaped.
Pumphrey, 512 So.2d at 1020.
Johnson, however, is distinguishable on three key points. First, Johnson was never formally...
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