Definition of Escape

The definition of escape is contained in Section 944.40, Florida Statutes, which provides that:

Any prisoner confined in any prison, jail, private correctional facility, road camp . . . whether operated by the state, a county, or a municipality, or operated under a contract . . . , working upon public roads, or being transported to or from a place of confinement who escape or attempts to escape from such confinement, commits a felony of the second degree…

Under the statute and applicable case law, the crime of escape consists of three factual elements:

  1. The defendant was under arrest and in the lawful custody of a law enforcement official, or was convicted of a crime and sentenced to a term of imprisonment; and
  2. While a prisoner, the defendant was confined at an institution, or being transported to or from a place of confinement, or was working on a public road; and
  3. The defendant escaped or attempted to escape with the intent to avoid lawful confinement.

See Fla. Std. Jury Instr. 27.1.

Escape Requires Arrest

A defendant may commit the crime of escape at any point after a qualifying arrest takes place.

An ‘arrest’ occurs where (1) the arresting officer intends to arrest; (2) the officer actually or constructively seizes the defendant; (3) the officer’s intent to arrest is communicated by the officer to the defendant; and (4) the defendant understands the communication (that an arrest is taking place).  Kyser v. State, 533 So. 2d 285, 287 (Fla. 1988); McKinnon v. State, 17 So. 3d 860, 861 (Fla. 5th DCA 2009); See also Fla. Std. Jury Instr. 27.1.

Arrest does not require that a law enforcement officer complete the act of acquiring total physical control over a defendant.  A constructive seizure, along with the advisement and understanding of an intended arrest, is all that is required.  See McKinnon v. State, 17 So. 3d 860 (Fla. 5th DCA 2009) (affirming an escape conviction where the officer served a warrant, advised of the intent to make an arrest, and unsuccessfully attempted to handcuff the defendant).

See also- Spann v. State, 996 So.2d 873 (Fla. 4th DCA 2008) affirming where a deputy ordered the defendant defendant “put [his] hands behind [his] back” and then reached for the defendant’s wrists; Thomas v. State, 805 So.2d 102 (Fla. 4th DCA 2002) (affirming where defendant was advised of the intended arrest and then failed to return after being allowed by the officer to briefly reenter the residence).

Incomplete Arrests

Escape requires a technical completion of an arrest.

Where there is no ‘touching’ of the defendant, or where the defendant does not acquiesce or submit to the intended arrest by the officer, a conviction for escape cannot be sustained.  Herbert v. State, 962 So. 2d 1068, 1072 (reversing escape conviction and finding that no arrest occurred because defendant took flight and was neither touched nor shown to have submitted to authority).

See also- Brown v. State, 623 So.2d 800 (Fla. 4th DCA 1993) (reversing escape conviction where the evidence established neither a physical touching of the defendant by the officer nor an acquiescence by the defendant to the attempted arrest).

Arrest must be Lawful

To sustain a conviction for escape, the arrest or custody at issue must be lawful in nature. Jean v. State, 27 So. 3d 784, 787 (Fla. 3d DCA 2010) (reversing escape conviction where the trial court prohibited defense counsel raising the issue of lawful custody).

See also- Applewhite v. State, 874 So.2d 1276, 1278 (Fla. 5th DCA 2004) (stating that “[t]he elements of [escape include whether] defendant was a prisoner, which is defined as any person who is under arrest and in the lawful custody of a law enforcement official”);  State v. Ramsey, 475 So.2d 671, 672 (Fla.1985) (identifying ‘legal custody’ as an element of escape).

Arrestees Being Transported

Contrary to the plain language of Section 944.40 and rules of statutory construction, Florida courts have consistently held that “transportation to a place of confinement” begins at the time an individual is placed under arrest.  See State v. Ramsey, 475 So. 2d 671, 672-73 (Fla. 1985) (citing State v. Iafornaro, 447 So.2d 961 (Fla. 5th DCA 1984).

Thus, there is no requirement of actual transport.  This rule essentially eliminates the second element of an escape charge for defendants who are alleged to have ‘escaped’ prior to being booked in jail or sentenced to prison.

If the defendant is under actual or constructive arrest then, by default, he or she has been ‘transported.’

Penalties for Escape

In Florida, the crime of escape is a second degree felony, with penalties of up to fifteen (15) years in prison or 15 years of probation, and a $10,000 fine.

Due to the nature of the charge as a crime against an officer and law enforcement authority, such offenses are harshly prosecuted throughout the State.  Escape is considered a Level 6 offense under Florida’s Criminal Punishment Code.

Defenses to Escape

There are numerous defenses available to contest a charge of escape in Florida.  Some of the more common defenses include the following:

  • Lack of intent to escape;
  • Inadequate communication of arrest;
  • Lack of technical arrest (actual or constructive);
  • Lack of knowledge that arresting person was a law enforcement officer;
  • Unlawful arrest;
  • The officer’s actions were insufficient to constitute arrest;
  • The defendant’s actions amount only to Resisting without Violence, a misdemeanor offense;
  • Illegal Arrest;
  • Excessive force necessitating escape (not applicable if escape occurs prior to the use of excessive force)

Contact an Attorney

If you have been arrested for escape, you should consult with an attorney immediately to discuss your legal options.  There me defenses available to contest the charge or to minimize the penalties you may face.  Contact Hussein & Webber, PL today for a free consultation.