Opinion
No. 75-043
Decided November 6, 1975. Rehearing denied November 28, 1975. Certiorari denied January 19, 1976.
On basis of Texas warrant relative to revocation of probation, defendant was arrested and was being held in county jail when he escaped. Upon conviction for crime of escape, he appealed.
Reversed
1. CRIMINAL LAW — Escape — Prisoners — Held For Extradition — Statute — Not Apply — Out-of-State Charge — Conviction. The Colorado statute on crime of escape does not apply to a prisoner held in custody for extradition pursuant to an out-of-state charge or conviction; hence, prisoner who fled from Colorado jail where he was being held pending extradition to Texas could not be convicted of crime of escape.
Appeal from the District Court of the County of Alamosa, Honorable Donald G. Smith, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Solicitor General, William J. Donlon, Jr., Assistant Attorney General, for plaintiff-appellee.
Smith Selby, Kenneth Selby, for defendant-appellant.
Division II.
Defendant, Lawrence Dale Bulmer, appeals from a conviction for escape under § 18-8-208(2), C.R.S. 1973. We reverse.
In 1974 defendant entered a plea of guilty in the state of Texas to the charge of theft of property valued at $200 or more. He was sentenced to a term of four years imprisonment and placed on probation for this period. Shortly thereafter a petition for revocation of probation was filed and an arrest warrant issued in Texas. Subsequently, on the basis of the Texas warrant, defendant was arrested in Colorado by the Alamosa County Sheriff's Department. While confined in the county jail, defendant escaped. He was captured, charged, and convicted of escape.
The issue presented here is whether an escape by a prisoner being held for extradition constitutes the crime of escape as that offense is defined in § 18-8-208, C.R.S. 1973.
The present escape statute, § 18-8-208, C.R.S. 1973, was enacted in 1971 and details five distinct sets of circumstances under which a person commits the crime of escape. It further establishes a standard whereby the seriousness of the crime of escape is determined by classification of the original crime for which the defendant was in custody or confinement. Section 18-8-210, C.R.S. 1973, sets forth guidelines for the purpose of determining the grade and classification of an offense under § 18-8-208, C.R.S. 1973, where a person is in custody or confinement for an offense which is unclassified. However, this section appears to be a "catchall" for unclassified crimes under Colorado statutes and does not broaden the scope of § 18-8-208, C.R.S. 1973. We find no section within the statute pertaining to out-of-state convictions or charges.
[1] Since § 18-8-208, C.R.S. 1973, was patterned after the New York Code, see 1971 Perm. Supp., C.R.S. 1963, 40-8-208 (Comment), we have examined the New York Penal Law §§ 205.00 — 205.15 (West 1975), in an attempt to discern whether the Colorado escape statute is intended to govern the case at bar. The New York Penal Law includes as a crime, escape from "any place used for the confinement, pursuant to an order of a court, of a person . . . . (c) held for extradition . . . ." New York Penal Law §§ 205.00(1) and 205.10 (West 1975). However, Colorado did not include such a provision in its statute. Therefore it is apparent that the Colorado statute on escape does not apply to a prisoner held in custody for extradition pursuant to an out-of-state conviction or charge. This holding, of course, does not preclude the bringing of appropriate charges against a prisoner for other offenses which may have been committed in the perpetration of the escape.
Since the defendant was not in custody or confinement under any circumstances defined by § 18-8-208, C.R.S. 1973, the conviction of escape cannot stand.
Judgment reversed.
JUDGE PIERCE and JUDGE KELLY concur.