Appeal from the Circuit Court of Cook County. Honorable James A. Zafiratos, Judge Presiding.
The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., And Rizzi, J., Concur.
The opinion of the court was delivered by: Cerda
JUSTICE CERDA delivered the opinion of the court:
Defendant Towanna Frazier was charged with escape. Defendant filed a motion to dismiss, claiming that because a violation of probation was neither a felony nor a misdemeanor, there was no basis for the charge. In response, the State conceded that the statute (720 ILCS 5/31-6(c) (West 1992)) did not include a violation of probation as an underlying offense and that no Illinois case law existed permitting such use. The trial court dismissed the escape charge and the State now appeals.
Defendant was originally arrested on a burglary charge to which she pleaded guilty and received probation. From October to December 1991, defendant failed to report to her probation officer and a warrant was issued for her arrest for violating the conditions of her probation. Defendant was subsequently arrested, and while in custody of police, defendant escaped.
The escape statute provides:
"A person in the lawful custody of a peace officer for the alleged commission of a felony offense and who intentionally escapes from custody commits a Class 2 felony; however, a person in the lawful custody of a peace officer for the alleged commission of a misdemeanor offense and who intentionally escapes from custody commits a Class A misdemeanor." 720 ILCS 5/31-6(c) (West 1992).
Clearly, the key to the crime of escape is being under arrest for either a felony or a misdemeanor offense. Offense is defined as "a violation of any penal statute in this state." (720 ILCS 5/2-12 (West 1992).) Obviously, a violation of probation for failing to report to aprobation officer is not an offense. A criminal or penal statute is to be strictly construed in favor of the accused and nothing should be taken by intendment or implication by the obvious or literal meaning of the statute. People v. Greer (1991), 143 Ill. 2d 271, 278, 573 N.E.2d 814, 158 Ill. Dec. 1.
At the hearing on the motion to dismiss, the court requested case law interpreting Illinois' escape statute. Both parties admitted there was no law factually similar to the present case interpreting the escape statute.
Prior to sustaining defendant's motion and dismissing the charges against her, the trial court found that the language of the escape statute did not apply where a defendant, who was arrested on the basis of a warrant issued for violation of felony probation, and who subsequently escaped. After applying the above principles we hold that since a violation of probation is not an offense, it cannot provide the basis for the underlying felony or misdemeanor offense requirement for escape.
Prior to the present provision for escape, Ill. Rev. Stat. (1961) ch. 38, sec. 31-6(c) provided as follows:
"A person in the lawful custody of a peace officer who intentionally escapes from custody commits a Class A Misdemeanor."
Thus, in this case if the defendant had escaped from custody after he had been arrested for violation of probation during the time the prior escape statute was in force, he could have been prosecuted for the offense of escape. People v. Weinstein (1921), 298 Ill. 264, 131 N.E. 631. However, under the present escape statute, a person in the lawful custody of a peace officer must be under arrest for the "alleged commission" of either a felony or misdemeanor. Alleged commission indicates that there has been no conviction for a ...