Appeal from Circuit Court of Greene County No. 98CF79 Honorable James W. Day, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
The State appeals the order of the circuit court of Greene County dismissing a felony charge of escape (720 ILCS 5/31-6(a) (West 1998)) it brought against defendant, Wesley R. Bowden. We affirm.
In 1998, the defendant was committed to the Greene County jail in lieu of posting bail to await trial on a pending felony charge of obstruction of justice, a Class 4 felony (720 ILCS 5/31-4(a), (d)(1) (West 1998)). On November 17, 1998, the trial court modified the conditions of defendant's bail to authorize work release. Under the terms of defendant's bail, beginning November 18, 1998, defendant was to be released from the county jail at 7 a.m. and to return at 7 p.m. On November 18, 1998, defendant was released as scheduled but thereafter failed to return.
On November 19, 1998, the State charged defendant with one count of escape in violation of section 31-6(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/31-6(a) (West 1998)). On December 29, 1998, defendant filed a memorandum of law in support of a motion to dismiss, contending he was not properly charged with escape under section 31-6(a) of the Code. On January 15, 1999, the trial court dismissed the charge of escape against defendant. The State appeals. II. ANALYSIS This appeal presents one issue for our review: whether a person charged with a felony who is released on work release from a penal institution as a condition of bail, but fails to return, may properly be prosecuted for the Class 2 felony of escape as defined in section 31-6(a) of the Code (720 ILCS 5/31-6(a) (West 1998)).
The statutory provision in question provides as follows:
"Escape; failure to report to a penal institution or to report for periodic imprisonment.
(a) A person convicted of a felony or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony; however, a person convicted of a felony who knowingly fails to report to a penal institution or to report for periodic imprisonment at any time or knowingly fails to return from furlough or from work and day release or who knowingly fails to abide by the terms of home confinement is guilty of a Class 3 felony." (Emphasis added.) 720 ILCS 5/31-6(a) (West 1998).
Here, the Class 3 felony provision of section 31-6(a) is not at issue as the defendant, in the present case, was committed to the county jail not as a convicted felon but, rather, in lieu of posting bail before trial. Accordingly, the State contends defendant is properly charged with escape under the Class 2 felony provision of section 31- 6(a) of the Code (720 ILCS 5/31-6(a) (West 1998)) as a person charged with the commission of a felony who intentionally escaped from a penal institution. In response, defendant argues his actions are not properly characterized as an "escape" under the Class 2 felony provision of section 31-6(a) but, rather, as a failure to return from a work release.
Hence, the question before us becomes whether the failure to return from work release, when ordered as a condition of bail for a defendant charged with a felony, constitutes an "escape" from a penal institution in violation of the Class 2 felony provision of section 31-6(a) (720 ILCS 5/31-6(a) (West 1998)).
Because this case presents no questions of fact and our decision turns on the proper interpretation of the statute, we review the trial court's ruling de novo. In re Application of the County Treasurer & ex officio County Collector, 307 Ill. App. 3d 350, 353, 717 N.E.2d 530, 533 (1999). A fundamental canon of statutory interpretation and construction is to ascertain and give effect to the intention of the legislature. McCann v. Presswood, 308 Ill. App. 3d 1068, 1071, 721 N.E.2d 811, 813 (1999). This inquiry appropriately begins with the language of the statute itself (People v. Woodard, 175 Ill. 2d 435, 443, 677 N.E.2d 935, 939 (1997)), as the language used by the legislature is the best indication of legislative intent (Nottage v. Jeka, 172 Ill. 2d 386, 392, 667 N.E.2d 91, 93 (1996)). In interpreting a statute, a court must give the legislative language its plain and ordinary meaning. Staske v. City of Champaign, 183 Ill. App. 3d 1, 4, 539 N.E.2d 747, 749 (1989). Where a statute is ambiguous and the legislative intent cannot be ascertained from the plain and ordinary meaning of its language, then the court is guided by the rules of statutory construction. Village of Buffalo v. Illinois Commerce Comm'n, 180 Ill. App. 3d 591, 595, 536 N.E.2d 438, 441 (1989).
In the present case, the State maintains defendant was properly charged with a Class 2 felony under section 31-6(a), citing People v. Simmons, 88 Ill. 2d 270, 430 N.E.2d 1032 (1981). In Simmons, the Supreme Court of Illinois interpreted section 31-6(a), which then provided only for a Class 2 felony, stating as follows: "A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution *** commits a Class 2 felony." Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a). Section 3-6-4(a) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4(a)) meanwhile provided as follows:
"A committed person who escapes or attempts to escape from an institution or facility of the Adult Division [of the Department of Corrections], or escapes or attempts to escape while in the custody of an employee of the Adult Division, or holds or participates in the holding of any person as a hostage by force, threat or violence, while participating in any disturbance, demonstration or riot, causes, directs[,] or participates in the destruction of any property is guilty of a Class 2 felony. A committed person who fails to return from furlough or from work and day release is guilty of a Class 3 felony."
In interpreting section 31-6(a) of the Code, our supreme court noted that the Unified Code "defines 'escape' as 'intentional and unauthorized absence' of a committed person from the custody of the Department" (Simmons, 88 Ill. 2d at 270, 430 N.E.2d at 1033) and found "no reason why conduct that is considered an escape under the [Unified Code and other statutory provisions] should not also be escape for purposes of the [Code]" (Simmons, 88 Ill. 2d at 273, 430 N.E.2d at 1034). In so doing, the court found an unauthorized absence from a ...