I must respectfully dissent from the majority opinion.
The Defendant was charged with, and plead no contest to, DUI. His driver’s license was suspended for 5 years; he was given a 12 month term of non-reporting probation with a special condition that he paid a $1,000.00 fine and complete an alcohol abuse program at the Veteran’s Administration Hospital.
In addition thereto, the trial judge ordered the Defendant “to serve 30 days in County Jail, to be served on [sic] Dade County Work project of [sic] 60 days.”
The Court executed a commitment order which shows Defendant’s conviction and jail sentence. Defendant was, in open court, immediately remanded into the custody of the Metro-Dade Police, and a sworn arrest affidavit was executed indicating that Defendant was arrested in the courtroom upon the signing of the order of commitment by the trial judge. Later that day Defendant was ordered by the Department of Corrections to report for the work project. The Defendant did in fact complete his sentence on the work release program.
*160The majority opinion, reversing the trial judge, finds that “the statute calls for imprisonment, imprisonment, imprisonment, and not substitutes.” It is interesting to note that the majority opinion fails to cite a single case as authority for its position, only Gertrude Stein. If literary citation is appropriate, reference to Oscar Wilde seems more apt, i.e. “Iron bars do not a prison made.”
The majority has further ignored F.S. 951.24. That statutes specifically provides:
“Whenever punishment by imprisonment in the County jail is prescribed, the sentencing court, in its discretion, may at any time during the sentence consider granting the privilege to the prisoner to leave the confines of the jail or county facility ... to work at paid employment. . .” See 2(a) emp. added.
The statute makes an exception in Sec 2(c) and denies work release privilege to any person convicted of sexual battery or any other sex offense. It does not make an exception for persons convicted of DUI.
The majority has also overlooked F.S. 944.02(5) and Pumphrey v State, 512 So.2d 1018 (Fla. 1st DCA 1987) wherein the court noted:
“The term prisoner is defined in section 944.02(5) as ‘any person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed ... to the custody of the department, as provided by law.”
The defendant herein clearly falls within this definition, and were he not to have reported to this work release program, he would have been subject to arrest and prosecution for the 2d degree felony of escape.
If the legislature intended to remove those persons convicted of DUI from the clear meaning of F.S. 951.24, they could have added such an exclusion as was done with persons convicted of sex offenses.
The majority has also overlooked the definition of imprisonment found in Black’s Law Dictionary, 5th Edition, (1979) at page 681:
“Imprisonment: . . . The restraint of a man’s personal liberty; . . . It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bar), as by verbal compulsion and the display of available force. Every confinement of the person is an ‘imprisonment’, whether it be in a prison,or in a private hour, or even by forcibly detaining one in the public streets . . .” (Emp. added)
*161The second problem I have with the majority’s position is that they have ignored the fact that the Defendant did in fact complete the sentence imposed by the Court.
When the State objected to the sentence, it did not seek a stay pending appeal. The majority opinion would require Defendant herein, through no fault of his own, to serve a second sentence for a single offense. Aside from this being constitutionally impermissible, it is inherently unfair.
If the majority felt that imprisonment meant imprisonment behind bars only, it could have recognized Defendant’s having served his court-imposed sentence, and used its opinion as guidance to the trial judges in future cases only. By ignoring this fact they have imposed an unjust and unconstitutional penalty upon the Defendant herein.