Smith v. State
| Decision Date | 20 July 1976 |
| Citation | 361 A.2d 237 |
| Parties | Joseph Junior SMITH, Defendant below, Appellant, v. STATE of Delaware, Plaintiff below, Appellee. |
| Court | United States State Supreme Court of Delaware |
Upon appeal from Superior Court. Affirmed.
Paul R. Steyermark, Asst. Public Defender, Wilmington, for defendant below, appellant.
Merritt Burke, III, Deputy Atty. Gen., Georgetown, for plaintiff below, appellee.
Before HERRMANN, C.J., and DUFFY and McNEILLY, JJ.
Defendant appeals from his Superior Court conviction of escape (11 Del.C. § 1253). 1 based upon his failure to return from a 48-hour furlough to the Sussex Correctional Institution where he was serving a Superior Court sentence of imprisonment.
Defendant contends that his failure to return from furlough does not constitute an 'escape' because he was not 'in custody' while on furlough. He relies on U.S. v. Person, S.D.Cal., 223 F.Supp. 982 (1963) which applied the rule of strict construction and held that failure to return from furlough was not punishable as an escape under the applicable federal statute.
Person represents a minority view. We choose to adopt the majority rule holding that a prisoner's failure to return from work release or furlough constitutes an escape. U.S. v. Rudinsky, 6th Cir., 439 F.2d 1074 (1971); U.S. v. Coggins, 4th Cir., 398 F.2d 668 (1968); McCullough v. U.S., 8th Cir., 369 F.2d 548 (1966); Nace v. U.S., 8th Cir., 334 F.2d 235 (1964); People v. Labrum, 25 Cal.App.3d 105, 101 Cal.Rptr. 602 (1972); People v. Haskins, 177 Cal.App.2d 84, 2 Cal.Rptr. 34 (1960); Cutter v. Buchannan, Ky., 286 S.W.2d 902 (1956); State v. Holbrook, Me., 318 A.2d 62 (1974); Shifflett v. State, 4 Md.App. 227, 242 A.2d 182 (1968); State ex rel. Johnson v. Warden, 196 Md. 672, 75 A.2d 843 (1950); State v. Glenn, 193 Neb. 230, 226 N.W.2d 137 (1975) (dicta); Commonwealth v. Bey, 221 Pa.Super. 405, 292 A.2d 519 (1972); State v. Furlong, 110 R.I. 174, 291 A.2d 267 (1972); State v. Kiggins, 86 S.D. 612, 200 N.W.2d 243 (1972).
Defendant had been 'committed to the custody of the Division of Adult Corrections' (now the Department of Health and Social Services) by the Superior Court for the purpose of carrying out a three-year sentence of imprisonment. Once so committed, he remained and continues to remain in the custody of the Department until released pursuant to statute or court order.
The furlough-enabling Statute, 11 Del.C. § 6358, 2 does not authorize the Department to release prisoners from its custody via furlough. That Statute empowers the Department to grant temporary furloughs for specific purposes as part of a rehabilitative program to prepare prisoners for their eventual release from custody. Implicit therein is the concept that the grant of a furlough is not intended to constitute a release from the custody of the Department, but merely extends the limits of custody according to its terms, be that custody characterized as actual or constructive.
Nor do we believe that the statutory definition of 'custody' was intended to establish such narrow restrictions on the limits of custody as would warrant a different conclusion. 11 Del.C. § 1258(2) defines custody as 'restraint by a public servant pursuant to an arrest, detention, or an order of court.' The corollary to this is that the defendant is Not 'in custody' only when he is free from such restraint.
We do not read the definition to require the objective manifestation of actual and immediate physical restraint at the particular time the defendant chooses to depart from the limits of his lawful custody. A prisoner on furlough, although outside the prison walls without immediate supervision, is clearly not free from restraint; he is deemed to be fully aware that his movements are restricted according to the limitations of time, place, and purpose imposed by the terms of the furlough.
Accordingly, we hold that the defendant was 'in custody' while on furlough, and that his unauthorized departure from the limits of that custody constituted an escape.
The evidence was sufficient to convict, and consequently the judgment below...
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State v. Smith
...the majority view that continued custody is not affected by the temporary release from physical control over an inmate. See Smith v. State, 361 A.2d 237 (Del.1976). In United States v. Rudinsky, 439 F.2d 1074 (6th Cir. 1971), the appellant who was charged with escape from the Federal Commun......
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State v. Paris
...and federal jurisdictions is that "a prisoner's failure to return from work release or furlough constitutes an escape." Smith v. State, 361 A.2d 237, 238 (1976) ; see also United States v. Rudinsky, 439 F.2d 1074, 1076 (6th Cir.1971) ; United States v. Coggins, 398 F.2d 668, 668 (4th Cir.19......
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...merely extends the limits of custody according to its terms, be that custody characterized as actual or constructive." Smith v. State, 361 A.2d 237, 238 (Del.Supr.1976). Even though on furlough, defendant was considered to be confined in a detention facility, at least for certain purposes. ......