Hendrickson v

State, 159 Ga. App. 628, 284 S.E.2d 645 (1981). City hospital administering emergency treatment is ‘‘place of lawful confinement.’’ — Prisoner who left city hospital without authorization upon receiving emergency medical treatment escaped from ‘‘place of lawful confinement’’ within meaning of O.C.G.A. § 16-10-52. Hornsby v. State, 159 Ga. App. 672, 284 S.E.2d 630 (1981). One convicted of violating municipal ordinances who escapes unarmed. — Where plaintiff was in confinement after being convicted of violating only certain municipal ordinances and there is absolutely no evidence that appellant was armed at time of appellant’s escape, appellant must be considered to be within category of ‘‘any other person convicted of escape’’ and, thus, appellant is subject to misdemeanor punishment. Hornsby v. State, 159 Ga. App. 672, 284 S.E.2d 630 (1981). Leaving treatment program and failing to report to probation officer did not constitute felony escape. — For purposes of probation revocation, a defendant had not committed a new felony 16-10-52 offense, escape under O.C.G.A. § 16-10-52, by leaving a drug and alcohol treatment program and by failing to report to a probation officer; the defendant was not then in lawful custody or in a residential facility operated by the Georgia Department of Corrections. Chester v. State, 287 Ga. App. 70, 651 S.E.2d 360 (2007). Underlying escape merged with felony murder. — Since the underlying felony charged to the jury for the felony murder charge was escape with a dangerous weapon, defendant’s separate conviction for this escape was set aside as having merged with the felony murder. Misdemeanor attempt, not felony, escape sentencing was proper when defendant was jailed for parole violation. — Defendant should have been sentenced for misdemeanor attempted escape under O.C.G.A. § 16-10-52(b)(4) since the defendant was in jail for a parole violation, not for a charge on another crime, when the defendant attempted to escape; because the defendant was not charged with any crime at the time the defendant was incarcerated for the parole violation when the defendant attempted to escape from custody, the defendant was erroneously sentenced for a felony under O.C.G.A. § 16-10-52(b)(2) and was entitled to resentencing for misdemeanor attempted escape under § 16-10-52(b)(4). Green v. State, 283 Ga. App. 541, 642 S.E.2d 167 (2007). Failure to abide by diversion center’s regulations. — It was error to hold that the appellant’s failure to abide by the diversion center’s regulations made appellant liable for the felony offense of escape rather than for the mere revocation of appellant’s probation. Unsatisfactory performance in the program would subject the probationer to revocation of probation as specified by O.C.G.A. § 42-8-38; however, an alternative to revocation of probation would be the imposition of the more severe sanctions of O.C.G.A. § 16-10-52(a)(3) (redesignated (a)(5) in 1997). Where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered. Chandler v. State, 257 Ga. 775, 364 S.E.2d 273 (1988). 702 Escape from diversion center. — Defendant was properly convicted of felony escape when, at the time of defendant’s escape, defendant was residing in a diversion center in service of a misdemeanor sentence after defendant’s probation was revoked, not as a condition of probation. Ashton v. State, 217 Ga. App. 337, 457 S.E.2d 226 (1995). When the defendant failed to report back to a diversion center after defendant was allowed to leave for work, defendant was guilty of the felony offense of escape and thereby violated probation, which was conditioned upon, inter alia, not violating the criminal laws of any governmental unit. Echols v. State, 233 Ga. App. 578, 505 S.E.2d 55 (1998). Defendant in house arrest program is in lawful custody or confinement. — Defendant participating in an electronically-monitored house arrest program is in lawful custody or lawful confinement, as provided in O.C.G.A. § 16-10-52, because the General Assembly explicitly recognized a defendant’s home as a place where he or she could be kept within bounds or restricted in movement for purposes of the electronic pretrial release program. Brown v. State, 314 Ga. App. 1, 723 S.E.2d 112 (2012). Evidence sufficient. — Prison security officer’s testimony from the officer’s personal knowledge, coupled with the unobjected to evidence of lawful confinement, was sufficient evidence from which a rational trier of fact could find defendant guilty of escape beyond a reasonable doubt. Smith v. State, 164 Ga. App. 463, 297 S.E.2d 378 (1982). Evidence on escape conviction was sufficient, where defendant was separated from codefendant and placed in investigator’s police vehicle for the trip to the jail to further investigate the matter, since the jury could reasonably conclude that a reasonable person in the suspect’s position would have thought the detention would not be temporary. Likewise, when seated in the anteroom of the police station in the presence of the radio officer and told to wait by the investigator, a reasonable per- 16-10-52 son would not have thought he or she was free to go. Truax v. State, 207 Ga. App. 506, 428 S.E.2d 611 (1993). Defendant’s departure from a jail after serving a few days of defendant’s eight-year sentence constituted an escape since: defendant knew that the sentence had not yet been served; criminal intent could be inferred from the fact that defendant gave the bondsman inaccurate information regarding defendant’s anticipated residence and place of employment; and defendant could not be found for over one year. Bridges v. State, 256 Ga. App. 355, 568 S.E.2d 574 (2002). When the defendant committed escape by failing to return to the work release program where the defendant was confined, the defendant was properly convicted of felony escape, under O.C.G.A. § 16-10-52(b)(1), because the authority for the defendant’s confinement in the work release program was the defendant’s felony conviction for robbery by intimidation as the defendant’s sentence for that offense had been modified to provide for the defendant’s confinement in the work release program, and the defendant was not entitled to be convicted of and sentenced for misdemeanor escape under O.C.G.A. § 16-10-52(b)(4). Bond v. State, 263 Ga. App. 620, 588 S.E.2d 801 (2003). Because, at the time of the defendant’s escape, the defendant was being held in custody based on probable cause that the defendant had committed a felony as demonstrated by the valid arrest warrant issued by the State of Florida, there was sufficient evidence to find the defendant guilty of felony escape under O.C.G.A. § 16-10-52(a)(2). Joiner v. State, 299 Ga. App. 300, 682 S.E.2d 381 (2009). Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of escape beyond a reasonable doubt because the defendant was in a state of being restricted to or detained within the defendant’s home, under the guard of an electronic monitor, and the defendant violated the conditions of the house arrest order by removing the monitor and leaving town. Brown v. State, 314 Ga. App. 1, 723 S.E.2d 112 (2012). 703 16-10-52