Keel v. State 438 So. 2d 850

JOANOS, Judge.

Appellant contends that the trial court erred in denying his motion to dismiss the information charging him with attempted escape because it is a non-existent crime. We have determined that appellant was properly charged in the information and that the crime of attempted escape does exist. Therefore we affirm.

The information charged that appellant, “being lawfully confined as a prisoner in a prison, jail, road camp, or other penal institution or while working on the public roads or being transported to or from a place of lawful confinement, did attempt to escape from the lawful custody of the Florida Department of Corrections .... ”

Appellant argues that the statutory crime of escape itself includes an attempt to escape, thus there can be no attempt to commit that crime. The authority cited by appellant in support of his position which presents a situation most similar to the present case is Sykes v. State, 397 So.2d 991 (Fla. 1st DCA 1981). In Sykes, this court concluded that controlling precedent required a determination that the crime of attempted grand theft does not exist because the attempt itself is included within the statutory definition of grand theft. However, a comparison of the statute involved in Sykes, Section 812.014, Florida Statutes, and the statute involved in the present case, Section 944.40, Florida Statutes, shows that the rationale of Sykes does not apply in this case.1 Section 812.014 states that “a person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another ...,” i.e., the definition of theft includes *851the attempt. There is, however, no comparable definition of escape in Section 944.40. Section 944.40 states that an escape or attempt to escape, alternatively, constitutes a second degree felony. The statute does not provide that a person is guilty of “escape” if he either escapes or attempts to escape. Thus attempted escape may occur in fact, and when that happens it does not become the offense of escape itself “by legislative fiat,” as is apparently the situation in regard to attempted grand theft. See Sykes at 993.

The information in this case properly charged appellant with a crime pursuant to the statute. The denial of appellant’s motion to dismiss the information is AFFIRMED.

LARRY G. SMITH and NIMMONS, JJ., concur.

ON MOTION FOR REHEARING OR CERTIFICATION

JOANOS, Judge.

Appellant has moved for rehearing or certification arguing that our distinguishing section 944.40, Florida Statutes, from the theft statute, section 812.014, Florida Statutes, involved in Sykes v. State, 397 So.2d 991 (Fla. 1st DCA 1981) was incorrect. We adhere to our earlier opinion and deny the motion.

As support, appellant points to: Ervin v. State, 410 So.2d 510 (Fla. 2d DCA 1981) in which the district court construed section 812.019, Florida Statutes, which pertains to dealing in stolen property; Hestor v. State, 363 So.2d 26 (Fla. 4th DCA 1978), in which section 918.14, Florida Statutes, relating to tampering with evidence, was considered; and McAbee v. State, 391 So.2d 373 (Fla. 2d DCA 1980) involving section 843.01, Florida Statutes, the statute involving resisting an officer with violence. We agree with appellant that the language of the statutes involved in those cases is similar to the language of section 944.40, in which an attempt is described as a violation of the statute. However, each of those cases, as well as the Sykes case, were concerned with a situation where the defendant was charged in the charging document with a violation of the statute in question, but found guilty of an “attempt” as a lesser included offense pursuant to an instruction on attempts. The courts determined that to be improper. We quibble not with the holdings in those cases. However, the point raised in the appeal before us is whether a defendant may be charged in the information with attempted escape in violation of the statute. The statute, section 944.40, provides that attempted escape is a violation of the statute. The defendant was charged with an attempt to escape in violation of the statute. The jury found him “... GUILTY of Attempted Escape as charged in the Information.” Judgment was entered adjudging him guilty of attempted escape in violation of section 944.-40. The cases cited as support by appellant all dealt with the general attempts statute, section 777.04, Florida Statutes, being en-grafted upon a situation where the statute that the defendant was charged with violating included an attempt as a violation of the statute itself. That is simply not the question raised in this appeal.

Motion DENIED.

LARRY G. SMITH and NIMMONS, JJ., concur.