July 1, 1980.
Appeal from the Circuit Court, Dade County, William E. Gladstone, J.
Janet Reno, State's Atty. and Ira N. Loewy, Asst. State's Atty., for appellant.
Bennett H. Brummer, Public Defender and Warren S. Schwartz and Bruce Rosenthal, Asst. Public Defenders, for appellee.
Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
Appellant, State of Florida, appeals a final order dismissing its petition for delinquency in which it was alleged that the appellee did unlawfully and feloniously escape from lawful confinement, or while being transported to lawful confinement as a juvenile alleged to have committed a delinquent act or violation of section 944.40, Florida Statutes (1977).
§ 944.40, Fla. Stat. (1977) provides: Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree.
The undisputed facts upon which the petition for delinquency is based show that the child departed from a police car en route to a juvenile detention facility after being taken into custody.
The petition was dismissed by the trial court upon motion of the appellee on the ground that section 944.40 does not apply to juveniles. It is from that order of dismissal that the state has appealed.
The state's sole point on appeal is whether the trial court erred in dismissing the petition for delinquency on the ground that a juvenile may not be prosecuted for escape from custody of a police officer while being transported to a place of detention.
We hold that the trial court was correct in dismissing the petition since the juvenile was charged only with the violation of section 944.40 and not with a violation of any other statute. It is clear that the allegations of the petition do not constitute a violation of law within the meaning of section 944.40, Florida Statutes. Earnest v. State, 351 So.2d 957 (Fla. 1977); Prince v. State, 360 So.2d 1161 (Fla. 4th DCA 1978); In re F.G., 349 So.2d 727 (Fla. 4th DCA 1977). The order appealed is affirmed.