2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 10 - Offenses Against Public Administration
Article 3 - Escape and Other Offenses Related to Confinement
§ 16-10-52. Escape

1. A person commits the offense of escape when he or she:
   1. Having been convicted of a felony or misdemeanor or of the violation of a municipal ordinance, intentionally escapes from lawful custody or from any place of lawful confinement;
   2. Being in lawful custody or lawful confinement prior to conviction, intentionally escapes from such custody or confinement;
   3. Having been adjudicated of a delinquent act or a juvenile traffic offense, or as a child in need of services subject to lawful custody or lawful confinement, intentionally escapes from lawful custody or from any place of lawful confinement;
   4. Being in lawful custody or lawful confinement prior to adjudication, intentionally escapes from such custody or confinement; or
   5. Intentionally fails to return as instructed to lawful custody or lawful confinement or to any residential facility operated by the Georgia Department of Corrections after having been released on the condition that he or she will so return; provided, however, such person shall be allowed a grace period of eight hours from the exact time specified for return if such person can prove he or she did not intentionally fail to return.
2. 1. A person who, having been convicted of a felony, is convicted of the offense of escape shall be punished by imprisonment for not less than one nor more than ten years.
   2. Any person charged with a felony who is in lawful confinement prior to conviction or adjudication who is convicted of the offense of escape shall be punished by imprisonment for not less than one nor more than five years.
   3. Notwithstanding paragraphs (1) and (2) of this subsection, a person who commits the offense of escape while armed with a dangerous weapon shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than 20 years.
   4. Any other person convicted of the offense of escape shall be punished as for a misdemeanor.

(a.1)Revocation of probation for conduct in violation of any provision of subsection (a) of this Code section shall not preclude an independent criminal prosecution under this Code section based on the same conduct.

(Laws 1833, Cobb's 1851 Digest, p. 807; Code 1863, § 4378; Code 1868, § 4416; Code 1873, § 4484; Ga. L. 1876, p. 112, § 1; Ga. L. 1882-83, p. 48, § 1; Code 1882, §§ 4483a, 4484; Ga. L. 1884-85, p. 52, § 1; Penal Code 1895, §§ 314, 316; Penal Code 1910, §§ 319, 321; Code 1933, §§ 26-4507, 26-4509; Ga. L. 1953, Nov.-Dec. Sess., p. 187, § 1; Ga. L. 1955, p. 578, § 1; Ga. L. 1961, p. 491, § 1; Code 1933, § 26-2501, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1983, p. 645, § 1; Ga. L. 1989, p. 329, § 1; Ga. L. 1994, p. 852, § 1; Ga. L. 1997, p. 1064, § 10; Ga. L. 2001, p. 94, § 2; Ga. L. 2013, p. 294, § 4-8/HB 242.)

- Conduct of trials of inmates charged with escaping from state or county correctional institution, § 17-8-50.

Demand by Governor for return of fugitives by other states, § 17-13-42 et seq.

Authority of Commissioner of Corrections to issue arrest warrant, § 42-2-8.

- Ga. L. 1997, p. 1064, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Juvenile Justice Act of 1997'."

Ga. L. 1997, p. 1064, § 12, not codified by the General Assembly, provides that the provisions of that Act "shall not affect or abate the status of a crime or delinquent act or of any such act or omission which occurred prior to April 22, 1997, nor shall the prosecution of such crime or delinquent act be abated as a result of the provisions of this Act."

Ga. L. 2001, p. 94, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the '2001 Crime Prevention Act'."

Ga. L. 2001, p. 94, § 8, not codified by the General Assembly, provides that this Act shall apply to offenses of escape committed on or after July 1, 2001.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

- Fugitive procedures, Official Compilation of the Rules and Regulations of the State of Georgia, Board of Corrections, Institutional and Center Operations, § 125-3-1-.07

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 69 (1997). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 122 (1994). For note on the 2001 amendment of this Code section, see 18 Ga. St. U.L. Rev. 47 (2001).

ANALYSIS

• General Consideration
• Indictment and Accusation
• Defenses
• Application

Former Code 1933, § 26-2501 (see now O.C.G.A. § 16-10-52) was not unconstitutionally vague and gives sufficient notice of prohibited conduct to persons of ordinary intelligence. Johnson v. State, 246 Ga. 126, 269 S.E.2d 18 (1980).

Challenge to the constitutionality of O.C.G.A. § 16-10-52(a.1) was rejected by the Supreme Court where the case, which was originally appealed to that court, was transferred to the Court of Appeals, indicating that no constitutional question was in fact properly raised or, if so raised, was not meritorious. Ashton v. State, 217 Ga. App. 337, 457 S.E.2d 226 (1995).

Former Penal Code 1895, § 314 (see now O.C.G.A. § 16-10-52) was inapplicable to one whose confinement was for safekeeping only, and was not part of court sentence. Welch v. State, 4 Ga. App. 388, 61 S.E. 496 (1908).

§ 16-10-52 did not apply to juvenile's escape from custody. - Juvenile who was taken into custody by the police for a probation violation, and who escaped, could not be adjudicated delinquent based on the adult crime of misdemeanor escape since the juvenile was not in custody prior to or after having been convicted of a felony, misdemeanor, or violation of a municipal ordinance. In re J.B., 222 Ga. App. 252, 474 S.E.2d 111 (1996).

O.C.G.A. § 16-10-52 does not apply to persons in custody for contempt, either civil or criminal. Flanagan v. State, 212 Ga. App. 468, 442 S.E.2d 16 (1994).

One confined by lawful authority must submit until delivered by due process by law. Grimes v. Burch, 223 Ga. 856, 159 S.E.2d 69 (1968).

Word "escape," as used in former Penal Code 1895, § 314 (see now O.C.G.A. § 16-10-52), may include escape from constructive confinement. Smith v. State, 8 Ga. App. 297, 68 S.E. 1071 (1910).

Former Penal Code 1895, § 314 (see now O.C.G.A. § 16-10-52) applied to escape from place of confinement for violators of municipal ordinances. Collins v. State, 120 Ga. 849, 48 S.E. 312 (1904).

Former Penal Code 1910, § 319 (see now O.C.G.A. § 16-10-52) referred only to persons convicted in state courts and not to those convicted in federal courts who may be imprisoned, under authority of United States officials, in state jails. Brandon v. State, 37 Ga. App. 495, 141 S.E. 63 (1927).

Escape is completed when a prisoner intentionally escapes from custody or confinement. However, even when the use of a dangerous weapon is shown in an escape, it is not necessary to prove that the use of the weapon was with intent to inflict serious bodily harm, an essential element of the crime of mutiny (O.C.G.A. § 16-10-54). Rhine v. State, 174 Ga. App. 859, 332 S.E.2d 1 (1985).

Sole purpose of phrase, "prior to conviction" is to distinguish misdemeanor grade of escape from felony grade. Fears v. State, 138 Ga. App. 885, 227 S.E.2d 785 (1976).

Words "dangerous weapon" in O.C.G.A. § 16-10-52(b) are not words of art but rather are words of common understanding and meaning which require no definition themselves for understanding by the jury. Baird v. State, 201 Ga. App. 378, 411 S.E.2d 332 (1991).

- When an indictment charging escape without a dangerous weapon does not affirmatively allege that defendant's prior confinement was pursuant to a felony or misdemeanor conviction, the indictment necessarily charges misdemeanor grade of escape and defendant cannot be subjected to felony punishment. Pruitt v. State, 135 Ga. App. 677, 218 S.E.2d 679 (1975).

Entry of a guilty plea was not a judgment of conviction until sentence was imposed; therefore, a defendant who walked away from the courthouse after entry of a plea but before sentencing was not guilty of felony escape, but could be convicted only of misdemeanor escape. Dorsey v. State, 259 Ga. App. 254, 576 S.E.2d 637 (2003).

When escape is made while in possession of dangerous weapon possible punishment is different than it is when there is no possession of such weapon. Halm v. State, 125 Ga. App. 618, 188 S.E.2d 434 (1972).

Rule prohibiting references to other crimes of accused not fully applicable to trial for escape, which by its nature alludes to prior act resulting in incarceration or conviction; evidence of escapee's original crime is often an unavoidable aspect of state's proof with regard to lawfulness of confinement. Carter v. State, 155 Ga. App. 840, 273 S.E.2d 417 (1980).

- When the conviction for an original crime does not occur prior to escape and thus is not relied upon to establish felony grade of offense, reference to conviction is unnecessary and is error. Gillespie v. State, 140 Ga. App. 408, 231 S.E.2d 154 (1976); Carter v. State, 155 Ga. App. 840, 273 S.E.2d 417 (1980).

Authority for detention is an essential element of felony offense of escape. Smith v. State, 154 Ga. App. 608, 269 S.E.2d 100 (1980).

- Trial court did not err in admitting evidence of prior conviction for armed robbery since proof of lawful confinement is a necessary element in proving crime of escape. Ingram v. State, 237 Ga. 613, 229 S.E.2d 416 (1976).

Admission of evidence of first murder was a necessary element of the state's case of escape against the defendant to show that defendant had been in lawful custody. Thomas v. State, 256 Ga. 170, 345 S.E.2d 350 (1986).

Trial court did not err in admitting evidence of defendant's previous convictions after defendant offered to stipulate that he had been convicted of a felony. Norris v. State, 227 Ga. App. 616, 489 S.E.2d 875 (1997).

In an escape case, the state was properly allowed to mention the nature of the defendant's prior felony convictions for aggravated assault, robbery, battery, and theft by taking. The nature of the convictions was not likely to inflame the jury's passions, and as O.C.G.A. § 16-10-52(a) required that the state prove that the defendant was in lawful custody at the time of the escape, the purpose was not solely to prove the defendant's status as a convicted felon. Allen v. State, 292 Ga. App. 133, 663 S.E.2d 370 (2008), aff'd, 286 Ga. 273, 687 S.E.2d 417 (2009).

Reference to conviction is generally irrelevant and should be avoided in trials for misdemeanor escapes unless its relevancy to issues being tried outweighs its prejudicial impact. Fears v. State, 138 Ga. App. 885, 227 S.E.2d 785 (1976).

- Defendant was properly convicted of escape under O.C.G.A. § 16-10-52(a)(5) even though defendant was on two days release to take care of personal matters when defendant committed the offense as the request for release was not granted until after the trial court pronounced sentence upon defendant, and the trial court released defendant from lawful custody. Suter v. State, 259 Ga. App. 28, 576 S.E.2d 10 (2002).

- When the party's confinement was not due to a criminal conviction but the person was a prisoner in lawful custody prior to conviction and under arrest warrant awaiting hearing as to revocation of the person's probation, the person may not be convicted of felonious escape. Smith v. State, 154 Ga. App. 608, 269 S.E.2d 100 (1980).

To obtain conviction of felony grade of escape, state must allege and prove prior conviction for felony or misdemeanor. Fears v. State, 138 Ga. App. 885, 227 S.E.2d 785 (1976).

Under O.C.G.A. § 16-10-52 a conviction of escape may be punished as a felony only if defendant's previous confinement was pursuant to a felony or misdemeanor conviction or if defendant escaped while armed with a dangerous weapon, without regard to the nature of the original crime or time of escape. Hornsby v. State, 159 Ga. App. 672, 284 S.E.2d 630 (1981).

- One may be convicted of felony offense of escape without dangerous weapon only where one's previous confinement was pursuant to a felony or misdemeanor conviction, all other escapes being misdemeanors. Pruitt v. State, 135 Ga. App. 677, 218 S.E.2d 679 (1975).

Conviction of felonious escape requires escape from confinement pursuant to felony or misdemeanor conviction, and all other escapees must receive misdemeanor punishment. Smith v. State, 154 Ga. App. 608, 269 S.E.2d 100 (1980).

- When a number of prisoners combined in a criminal conspiracy to escape the jail, and one of the prisoners wielded a heavy stool striking a guard on the head causing serious injury, that prisoner used a dangerous weapon and all the escapees were equally guilty of the use of that weapon which changes the crime from a misdemeanor to a felony. Rhine v. State, 174 Ga. App. 859, 332 S.E.2d 1 (1985).

- When two persons jointly escape from lawful confinement but only one wielded a weapon, both may be convicted of escape while armed with a dangerous weapon. Davis v. State, 169 Ga. App. 601, 314 S.E.2d 257 (1984).

- Fact that defendant was acquitted of murder offense, for which defendant was in pretrial custody and from which defendant escaped while armed with a gun, did not preclude defendant's conviction for felony grade of escape. Hawkins v. State, 163 Ga. App. 477, 294 S.E.2d 710 (1982).

- When a defendant is being tried for escape, there is no harm in trying defendant in a prison uniform. Barton v. State, 184 Ga. App. 258, 361 S.E.2d 250 (1987).

- Misdemeanor offense of escape does not involve moral turpitude, and a conviction is inadmissible to impeach a witness. Norley v. State, 170 Ga. App. 249, 316 S.E.2d 808 (1984).

- Because the offense of escape presents the potential risk of violence, even when it involves a "walk-away" from unsecured correctional facilities, the federal district court did not err in holding that escape conviction qualified as a "crime of violence" under the career offender guideline. United States v. Gay, 251 F.3d 950 (11th Cir. 2001).

- While the court of appeals cited the wrong version of O.C.G.A. § 16-10-52(b), the error was of no consequence because under both the July 2001 version of the statute and the pre-July 2001 version, anyone who, having been convicted of a felony at the time of escape, was subject to being sentenced for up to ten years for escape; because the circumstances of the defendant's case were unaffected by the July 2001 amendment to § 16-10-52(b), the failure of the court of appeals to cite the pre-July 2001 version of the statute was not reversible error. Allen v. State, 286 Ga. 273, 687 S.E.2d 417 (2009).

- Although the judge did not indicate reasoning for sentencing defendant to the maximum penalty for defendant's crime, there was no evidence that the judge was motivated to do so merely because defendant refused to enter a guilty plea, and the sentence was within the minimum and maximum sentences prescribed by law. West v. State, 241 Ga. App. 877, 528 S.E.2d 287 (2000).

In an escape case, the defendant's prior aggravated assault, robbery, battery, and theft convictions were available to sentence the defendant as a recidivist under O.C.G.A. § 17-10-7(a) because any of the defendant's armed robbery convictions, which were pending at the time the defendant escaped, would support the defendant's being sentenced as a convicted felon under O.C.G.A. § 16-10-52(b). Allen v. State, 292 Ga. App. 133, 663 S.E.2d 370 (2008), aff'd, 286 Ga. 273, 687 S.E.2d 417 (2009).

Cited in Bolick v. State, 127 Ga. App. 542, 194 S.E.2d 302 (1972); Mincey v. Hopper, 233 Ga. 378, 211 S.E.2d 283 (1974); Carter v. State, 133 Ga. App. 446, 211 S.E.2d 401 (1974); Dixon v. State, 234 Ga. 157, 215 S.E.2d 5 (1975); Myers v. State, 143 Ga. App. 195, 237 S.E.2d 662 (1977); Bailey v. State, 146 Ga. App. 774, 247 S.E.2d 588 (1978); Lester v. State, 188 Ga. App. 211, 372 S.E.2d 486 (1988); Palmer v. State, 260 Ga. 330, 393 S.E.2d 251 (1990); Spencer v. State, 260 Ga. 640, 398 S.E.2d 179 (1990); Harden v. State, 197 Ga. App. 686, 399 S.E.2d 276 (1990); Bland v. State, 264 Ga. 610, 449 S.E.2d 116 (1994); Salters v. State, 244 Ga. App. 219, 535 S.E.2d 278 (2000); May v. State, 244 Ga. App. 201, 535 S.E.2d 252 (2000); Shearin v. State, 293 Ga. App. 794, 668 S.E.2d 300 (2008); Williams v. Morahan, F.3d (11th Cir. Sept. 11, 2013) (Unpublished).

If indictment charges misdemeanor escape, evidence at trial cannot alter grade of offense charged. Pruitt v. State, 135 Ga. App. 677, 218 S.E.2d 679 (1975).

- Failure to allege intentional escape in accusation does not render a conviction void where accusation alleged that escape was contrary to laws of Georgia and where crime was otherwise clearly described. Fears v. State, 138 Ga. App. 885, 227 S.E.2d 785 (1976).

- Escape may, under certain circumstances, be one of a series of acts connected together and joined in a multi-count indictment. Carter v. State, 155 Ga. App. 840, 273 S.E.2d 417 (1980).

- There was no fatal variance between an indictment for felony escape and the proof at trial. The allegation that the defendant was in custody for theft by taking was mere surplusage; the defendant's lawful confinement was both alleged and proven without regard to the theft allegation. Juhan v. State, 322 Ga. App. 620, 744 S.E.2d 910 (2013).

It is no defense that escape was to avoid unmerited punishment. Johnson v. State, 122 Ga. 172, 50 S.E. 65 (1905).

- Defendant's claim of unlawful sentence as a defense to an escape charge failed because the sentence, imposed upon revocation of probation, to confinement in the county jail under work release was lawful since it did not require continuous and uninterrupted incarceration. Yother v. State, 243 Ga. App. 422, 532 S.E.2d 696 (2000).

- Coercion is no defense when any reasonable way to escape threat of harm is available. Proctor v. State, 139 Ga. App. 794, 229 S.E.2d 675 (1976); Vowell v. State, 174 Ga. App. 426, 330 S.E.2d 167 (1985).

Whether any reasonable way of escaping threat of harm is available is for jury determination. Proctor v. State, 139 Ga. App. 794, 229 S.E.2d 675 (1976).

Negligence of keeper of jail is no defense to charge of escape. Johnson v. State, 246 Ga. 126, 269 S.E.2d 18 (1980).

- Fact that accused may have been deprived of various procedural rights prior to conviction or sentence does not render the accused's imprisonment so void as to justify escape. Grimes v. Burch, 223 Ga. 856, 159 S.E.2d 69 (1968).

- Defendant was not lawfully arrested for disorderly conduct because Georgia law did not criminalize obscene language; therefore, because the defendant was not in lawful custody, the defendant could not be charged with escape in violation of O.C.G.A. § 16-10-52(a)(2) when the defendant elbowed the chief of police during a pat down and ran from the scene. Meadows v. State, 303 Ga. App. 40, 692 S.E.2d 708 (2010).

Deprivation of counsel does not invalidate conviction so as to justify escape, and failure to promptly grant hearing or trial does not render imprisonment so unlawful as to excuse escape. Grimes v. Burch, 223 Ga. 856, 159 S.E.2d 69 (1968).

- When one is deprived of constitutional right to jury trial, or to preliminary examination required by statute, one's confinement may be so void that one's escape therefrom is justified. Grimes v. Burch, 223 Ga. 856, 159 S.E.2d 69 (1968).

That defendant is a chronic alcoholic is not an excuse for offense of escape. Grimes v. Burch, 223 Ga. 856, 159 S.E.2d 69 (1968).

Alcoholism is not involuntary intoxication and, consequently, is not a defense to offense of escape or any other criminal act or omission. Ford v. State, 164 Ga. App. 620, 298 S.E.2d 327 (1982).

- Taking car and changing out of prison clothing indicate defendant had not merely wandered off in drunken stupor. Holt v. State, 143 Ga. App. 438, 238 S.E.2d 763 (1977).

Application

Inmate's unauthorized departure from unsupervised work site on state property.

- Prisoner who due to good behavior was assigned to unconfined and unsupervised daily work for state outside of correctional institution was restricted to perimeters of state property upon which the prisoner worked and remained at all times in constructive custody of state. Unauthorized departure from work site constituted a violation of O.C.G.A. § 16-10-52. Hendrickson v. State, 159 Ga. App. 628, 284 S.E.2d 645 (1981).

- 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).

- 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).

- For purposes of probation revocation, a defendant had not committed a new felony 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).

- 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. Thomas v. State, 256 Ga. 170, 345 S.E.2d 350 (1986). Gore v. State, 246 Ga. 575, 272 S.E.2d 306 (1980).

- 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).

- 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).

- 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 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).

- 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 person 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).

OPINIONS OF THE ATTORNEY GENERAL

Crime of escape not completed until inmate departs from prison itself.

- Crime of escape is not committed by inmate prior to the inmate's departure from custody, which would be a departure from the prison itself; a prisoner is merely attempting to escape from custody until the prisoner actually escapes. 1970 Op. Att'y Gen. No. 70-131.

- Residents of diversion centers may be charged with escape when they abscond. 1986 Op. Att'y Gen. No. 86-3.

- Correctional officers are authorized to use their police power to arrest an escaping inmate who has previously been convicted of a felony or misdemeanor for felony of escape. In making this arrest, the officer is justified in using same reasonable force provided under law for arrest by police officers when felony has been committed in their presence. 1981 Op. Att'y Gen. No. 81-82.

Correctional officer making lawful arrest can use no more force than is reasonably necessary under circumstances and cannot use force disproportionate to resistance offered. 1981 Op. Att'y Gen. No. 81-82.

- There are several prerequisites to use of deadly force by correctional officer in preventing escape. First, inmate must have previously been convicted of felony or misdemeanor. Secondly, correctional officer must either know that inmate is trying to escape or be able to reasonably conclude in the officer's own mind from circumstances that inmate is trying to escape, thus committing felony offense of escape. Thirdly, circumstances must be such that a reasonable man would have felt that it was necessary to use deadly force at time to prevent escape. 1981 Op. Att'y Gen. No. 81-82.

- Assuming that release of one accused of escape does not interrupt service of existing sentence, accused is entitled to be released on bail if offense is a misdemeanor, and if a felony, the accused is entitled to bail either before or after indictment. 1970 Op. Att'y Gen. No. U70-136.

RESEARCH REFERENCES

Am. Jur. 2d.

- 27A Am. Jur. 2d, Escape, § 1 et seq.

- 30A C.J.S., Escape and Related Offenses; Rescue, § 1 et seq.

- Dispute over custody as affecting charge of obstructing or resisting arrest, 3 A.L.R. 1290.

What justifies escape or attempt to escape, or assistance in that regard, 70 A.L.R.2d 1430.

Escape or prison breach as affected by means employed, 96 A.L.R.2d 520.

What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 A.L.R.3d 397.

Escape from public employee or institution other than correctional or law enforcement employee or institution as criminal offense, 69 A.L.R.3d 625.

Escape from custody of private person as criminal offense, 69 A.L.R.3d 664.

Failure of prisoner to return at expiration of work furlough or other permissive release period as crime of escape, 76 A.L.R.3d 658.

Temporary unauthorized absence of prisoner as escape or attempted escape, 76 A.L.R.3d 695.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.

Admissibility of evidence that defendant escaped or attempted to escape while being detained for offense in addition to that or those presently being prosecuted, 3 A.L.R.4th 1085.

Conviction for escape where prisoner fails to leave confines of prison or institution, 79 A.L.R.4th 1060.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.

Construction and application of enhanced sentencing provision of Armed Career Criminal Act (ACCA), 18 U.S.C.A. § 924(e) - United States Supreme Court cases, 67 A.L.R. Fed. 2d 1.