Sanders v. State, 4-86-1311

Decision Date30 December 1987
Docket NumberNo. 4-86-1311,4-86-1311
Citation13 Fla. L. Weekly 76,517 So.2d 134
Parties13 Fla. L. Weekly 76 Jeffrey SANDERS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, Thomas F. Ball, III, Asst. Public Defender, and Leonardo Viota Sesin, Legal Intern, West Palm Beach, for appellant.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Eddie J. Bell, Asst. Atty. Gen., West Palm Beach, for appellee.

HERSEY, Chief Judge.

Jeffrey Sanders, while incarcerated on a previous conviction, was observed conducting certain activity at a window of the prison. As a result, he was tried and convicted of the charge of attempted escape. He appeals his conviction on two grounds, the first of which requires reversal.

The trial court permitted the jury to consider the Information underlying appellant's earlier conviction and to take it to the jury room. Appellant alleges error in that the Information recited serious crimes, knowledge of which prejudiced the jury. The state responds that introduction of the Information was necessary to prove that appellant was in lawful custody, a necessary element to the current charge of escape from lawful confinement.

The statute under which appellant was charged, section 944.40, Florida Statutes (1985), 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, 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.

Testimony of state witnesses established that appellant was confined in prison. Evidence that one is confined in prison raises a presumption of lawful custody. State v. Williams, 444 So.2d 13 (Fla.1984). No evidence having been proffered to rebut the presumption, there was no necessity to introduce the Information into evidence.

We agree with the appellant's position and reverse. The convictions for which appellant was serving time in prison were serious offenses and were not relevant to the issue of attempted escape. Introduction of the Information was highly prejudicial.

Our failure to treat appellant's additional argument for reversal should not be taken as tacit approval of some of the remarks made by the state in closing argument. We simply observe that it is unnecessary to examine additional points because of our determination that use of the Information on the facts of this case requires that we reverse and remand for a new trial.

REVERSED AND REMANDED.

WALDEN, J.,...

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4 cases
  • Sigler v. State, 4D00-19.
    • United States
    • Florida District Court of Appeals
    • 5 Diciembre 2001
    ...appellant was then in lawful custody is generally held to be error. See Brown v. State, 719 So.2d 882 (Fla.1998); Sanders v. State, 517 So.2d 134 (Fla. 4th DCA 1987). However, reversal is not required where there is no reasonable possibility that the error harmfully contributed to the verdi......
  • Washington v. State, 89-1047
    • United States
    • Florida District Court of Appeals
    • 5 Octubre 1989
  • Lambert v. State
    • United States
    • Florida Supreme Court
    • 15 Junio 1989
  • Cannon v. State, 87-1797
    • United States
    • Florida District Court of Appeals
    • 11 Agosto 1988
    ...effect on the jury. See Parker v. State, 408 So.2d 1037 (Fla.1982); Williams v. State, 492 So.2d 1051 (Fla.1986); Sanders v. State, 517 So.2d 134 (Fla. 4th DCA 1987). We nonetheless affirm appellant's conviction, finding the error to be harmless in this case in light of the overwhelming evi......

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