applying Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)
How later courts described this case
- applying Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)
Written by the judges who cited it.
The opinion
LANE, Judge,
concurs in results.
¶ 1 I agree with the majority that the prosecution by the State for escape is not barred by jeopardy. However, I do so using different reasoning than that employed by the majority.
¶2 Like the majority, I find Appellant was punished twice for his escape. First, *911 when the prison authorities imposed 30 days of disciplinary segregation (thus restricting his movement and activities) and revoking his earned credits (thus requiring him to serve more time before he is released from the penitentiary). Second, he was further punished in the court criminal prosecution by being sentenced to serve another four years in the custody of the Department of Corrections. The majority contends that this is not jeopardy, because the punishment prescribed by DOC is merely an alteration of the conditions under which Appellant’s sentence is being served. I do not think this is the proper approach. I would find that both sanctions are punishment and neither is remedial in nature. I would then look to Ellis v. State, 1992 OK CR 35 , 834 P.2d 985 , 991 where we found that if the Legislature explicitly authorized multiple punishment the judicial inquiry is at an end. The legislature intended multiple punishment. Section 443 defines the crime of escape from a penal institution and sets the limits of punishment for the crime, which is then followed by § 443a which states:
In addition, all prisoners who escape from either of the aforesaid prisons either while confined therein, or while at large as a trusty, when apprehended and returned to the prison, shall be punishable by the prison authorities in such manner as may be prescribed by the rules and regulations of the prison provided that such punishment shall not be cruel or unusual.
(Emphasis added.)
The use of the word “shall” indicates to me that the Legislature wants the escapee prosecuted under § 443 and punished under § 443a. Since there is no question that the Legislature intended” additional punishment, our inquiry must end.