Villegas-Alen v. State, 1D98-3771.

• Decision Date: 09 November 2000
• Docket Number: No. 1D98-3771.,1D98-3771.
• Parties: Gilberto VILLEGAS-ALEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

797 So.2d 1

Gilberto VILLEGAS-ALEN, Appellant,
v.
STATE of Florida, Appellee

No. 1D98-3771.

District Court of Appeal of Florida, First District.

November 9, 2000.

Opinion on Rehearing January 22, 2001.

Nancy A. Daniels, Public Defender; Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Giselle Lylen Rivera and Thomas D. Winokur, Assistants Attorney General, Tallahassee, for Appellee.

PER CURIAM.

In the instant case, appellant argues that his conviction and sentence for escape under section 944.40, Florida Statutes (1997), must be vacated because as a civil detainee of the federal Immigration and Naturalization Service (INS), he was not a "prisoner" subject to the statute. We agree and reverse on this issue. We affirm, however, without further discussion appellant's judgment and sentence for grand theft of an automobile.

Upon appellant's completing service of a state prison sentence in June 1997, the Department of Corrections released appellant to the custody of the INS pursuant to a federal detainer. Appellant was to be deported in accordance with a previously issued federal order. Pending deportation, appellant and several other such aliens were housed in the Bay County Jail Annex pursuant to a contract between the Corrections Corporation of America (CCA), a private firm that operates the jail, and the INS. In July 1997, appellant and three others absconded from the jail, but they were quickly captured. Whereupon, appellant was charged with escape in violation of section 944.40, Florida Statutes, and grand theft of an automobile. Via a motion to dismiss, appellant argued that the state would be unable to prove the escape charge because the state would not be able to show that appellant was under arrest or a prisoner at the time of the breakout. The motion was denied pretrial and when it was renewed at the beginning of trial and at the close of the state's case. Appellant also made this precise argument in a motion for judgment of acquittal, which was denied, and when he requested that the jury be instructed on

797 So.2d 2

Florida's legal definition of the word "arrest," which also was denied. In addition, appellant attempted to present this same theory of defense in closing argument, but the court disallowed it upon the state's objection. Accordingly, the issue has been preserved for our review

Appellant was charged with escape under section 944.40, which provides as follows (emphasis added) in pertinent part:

Escapes; penalty. 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....

The word "prisoner" in turn is defined in section 944.02(5) (emphasis added) as

any person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed to any municipal or county jail or state prison, or penitentiary, or to the custody of the department, as provided by law.

In the instant case, the state correctly conceded below that the second part of the definition of "prisoner" in section 944.02(5), Fla. Stat. was inapplicable. Appellant had completed service of his previous state sentence, and at the time of the breakout he was not under any criminal sentence either federal or state. Thus to charge escape under section 944.40, the state had to allege and show that appellant was a "prisoner" by virtue of his being, at the time of the breakout, "under arrest and in the lawful custody of any law enforcement official."

In the information, the state alleged that appellant "escaped" at a time when he was in the custody of CCA "as a prisoner for the Immigration and Naturalization Service."...