State v. Fulkerson

• Decision Date: 06 March 1974
• Docket Number: No. 73--111,73--111
• Parties: STATE of Florida, Appellant, v. James E. FULKERSON, Appellee.
• Court: Florida District Court of Appeals

Page 276

300 So.2d 276

STATE of Florida, Appellant, v. James E. FULKERSON, Appellee.

No. 73--111.

District Court of Appeal of Florida, Second District.

March 6, 1974.

Robert L. Shevin, Atty. Gen., Tallahassee, and Richard C. Booth, Asst. Atty. Gen., Tampa, for appellant.

Robert E. Jagger, Public Defender, Clearwater, and J. Marion Moorman, Asst. Public Defender, Dade City, for appellee.

GRIMES, Judge.

On May 23, 1972, James E. Fulkerson was named in a warrant issued by Judge Seaver as being a fugitive charged with committing the crime of grand larceny--auto theft in the State of Virginia. Pursuant to F.S. 941.15, F.S.A., Judge Seaver determined that Fulkerson was the person sought in the warrant and ordered him committed to the Pasco County Jail for a period not exceeding thirty days.

Fulkerson was still in custody on July 27, 1972, when he was arrested on the Governor's warrant of arrest issued in response to the demand of the State of Virginia. Four days later, Fulkerson left the confines of the Pasco County Jail without any release procedure. Fulkerson had been in jail at all times between May 23, 1972, and July 31, 1972.

Fulkerson was charged with felonious escape from confinement under F.S. 944.40, F.S.A. The lower court granted Fulkerson's motion to dismiss the information. The State of Florida appeals this order.

The order of dismissal recites that Fulkerson had been held beyond the statutory maximum of thirty days confinement provided for in F.S. 941.15, F.S.A., and that no extension of confinement had been sought by the State pursuant to F.S. 941.17, F.S.A. The trial judge concluded that Fulkerson was being unlawfully held at the time of his unauthorized departure and, therefore, could not be convicted of escape.

While F.S. 944.40, F.S.A. only refers to escape from confinement, a number of Florida cases have stated that for one to be convicted of the crime of escape, he must be Lawfully confined. E.g., Fulford v. State, Fla.App.2nd, 1959, 113 So.2d 572; Maggard v. State, Fla.App.4th, 1969, 226 So.2d 32; and Abigando v. State, Fla.App.1st, 1970, 239 So.2d 646. The Supreme Court in State v. Culver, Fla.1959, 110 So.2d 674, appears to have amplified this statement when it said:

'The fact that petitioner has never been tried for the felony with which he was charged at the time of his escape or, even, that he is innocent of such charge, as he here contends, is of no legal consequence insofar as his incarceration under the escape conviction is concerned. As noted above, under our statute the crime of escape is a substantive offense, and the punishment therefore is not merely incidental to the punishment for the offense for which the prisoner was confined at the time of his escape. Even though the indictment under which he was confined at the time of his escape is subsequently dismissed, Godwin v. United States, 8 Cir., 1950, 185 F.2d 411, or the conviction under which he was confined at the time of his escape is subsequently reversed or set aside on appeal, Commonwealth v. Nardi, 1958, 185 Pa.Super. 136, 138 A.2d 140; Moore v. Commonwealth, 1946, 301 Ky. 851, 193 S.W.2d 448, 163 A.L.R. 1134, the prisoner must nevertheless bear the penalty for the separate and distinct offense of escape. . . .'

The subject of justification for escape has been considered in depth in an annotation at 70 A.L.R.2d 1430. The annotator observes that the cases dealing with this question often present a collision of two basic philosophies. On the one hand, it seems unfair that one unlawfully imprisoned should be subjected to further punishment for merely asserting the right to liberty guaranteed him by the Constitution. On the other hand, the problems of prison administration would become intolerable if each prisoner who believed himself to be...