dissenting:
I must respectfully dissent from the decision of the majority in this case for two reasons. First, I believe that section 3 — 6—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 6—4(a)) provides the exclusive sanction for a failure to return from work release, and consequently prosecution under section 31 — 6(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 31 — 6(a)) was erroneous. Secondly, even if prosecution for escape under section 31 — 6(a) was proper here, the State’s revelation to the jury during the trial of the exact nature and extent of the defendant’s prior felony convictions which constituted an element of the offense was reversible error.
As the majority points out, this case is similar to People v. Cole (1980), 84 Ill. App. 3d 347, 405 N.E.2d 347. In Cole, a majority of this court held that the convict defendant who had failed to return from furlough could be prosecuted for escape under either the escape statute, violation of which is a Class 2 felony (Ill. Rev. Stat. 1977, ch. 38, par. 31 — 6(a)), or under section 3 — 6—4(a) of the Unified Code of Corrections, which provides that a person committed to the Department of Corrections who fails to return from furlough, work release, or day release is guilty of a Class 3 felony (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 6—4(a)). I dissented in Cole because I believe the language of the relevant statutes, as well as their legislative history, evinces a clear legislative intent that a failure to return from a furlough is to be punishable only under section 3 — 6—4(a) of the Unified Code of Corrections. For these same reasons, I believe that a failure to return from work release is punishable only under section 3 — 6—4(a), and prosecution of the defendant under section 31 — 6(a) was improper.
Prior to January 1, 1973, section 123 — 7 of the Code of Criminal Procedure of 1963 provided for the establishment of work-release programs by the Department of Corrections (Ill. Rev. Stat. 1971, ch. 38, par. 123 — 7). Section 123 — 7 provided that any person committed to the Department of Corrections who escaped from work release “is guilty of the crime of escape and may be prosecuted under any applicable statute.” This statute was subsequently repealed by Public Act 77-2097 (effective January 1,1973), which created the current Unified Code of Corrections. Section 123 — 7 was replaced by a more comprehensive statute governing work-release procedures (Ill. Rev. Stat. 1973, ch. 38, pars. 1003 — 13—1 through 1003 — 13—6). Section 3 — 13—4 covers rules and sanctions, and provides in pertinent part:
“(a) The Department shall establish rules governing release status and shall provide written copies of such rules to both the committed person on work or day release and to the employer or other person responsible for the individual. Such employer or other responsible person shall agree to abide by such rules, notify the Department of any violation thereof by the individual on release status, and notify the Department of the discharge of the person from work or other programs.
(b) If a committed person violates any rule, the Department may impose sanctions appropriate to the violation. The Department shall provide sanctions for unauthorized absences which shall include prosecution for escape under Section 3 — 6—4.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 13-4(a), (b).)
Section 3 — 6—4(a) provides:
“(a) A committed person who escapes or attempts to escape from an institution or facility of the Adult Division, 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.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4(a).
I believe that on the basis of these statutes and their legislative history the legislature has made it patently clear that a person committed to the Department of Corrections who fails to return from work release is not to be tried for the crime of escape under section 31 — 6(a), but is rather to be prosecuted under section 3 — 6—4(a) in accordance with the directives of section 3 — 13—4(b) if the Department of Corrections deems criminal prosecution to be the appropriate remedy. The previous work-release statute, section 123 — 7, allowed for prosecution for unauthorized absences from work-release centers “under any applicable statute.” This broad language obviously included prosecution for escapes under section 31 — 6(a). In my opinion, by repealing section 123 — 7 and replacing its sanction provisions with section 13 — 3—4(b) of the Unified Code of Corrections, the General Assembly has eliminated criminal prosecution as the sole sanction for failure to return from work release and in its place provided for the imposition of such disciplinary sanctions as the department shall deem necessary. If, however, criminal prosecution is appropriate, prosecution shall be pursuant to section 3 — 6—4(a). Prosecution for escape under section 31 — 6(a) is limited to all escapes other than a failure to return from an authorized absence in the form of furlough, work release, or day release.
Also, as I stated in my dissent in Cole, there is another important line of reasoning which supports my position that prosecution for unauthorized absences from furlough, work or day release under section 31 — 6(a) is improper:
“ ‘It is a rule of statutory construction that the expression of one thing is the exclusion of others, and it is also axiomatic that the specific shall prevail over the general.’ (People v. Caryl (1977), 54 Ill. App. 3d 537, 538-39, 369 N.E.2d 926, 927; People v. Whitney (1977), 46 Ill. App. 3d 708, 361 N.E.2d 131.) It was error for the State to prosecute under section 31 — 6(a), the more general escape statute, when a more specific statute proscribing the conduct and affording appropriate sanctions was available. In People v. Hale (1965), 55 Ill. App. 2d 260, 204 N.E.2d 833, the defendant escaped from the Illinois State Farm at Vandalia. He was subsequently prosecuted for escape under section 5 of ‘An Act in relation to the Illinois State Farm’ (Ill. Rev. Stat. 1971, ch. 118, par. 18) and convicted. On appeal, he contended that the trial court erred in sentencing him under the Illinois State Farm Act, rather than under the provisions of the escape statute (section 31 — 6(b)). The court, in finding no error, stated:
‘Paragraph 18 of Chapter 118 is a particular enactment that applies only to escapes from the Illinois State Farm, whereas paragraph 31 — 6(b) of the Criminal Code of 1961 is a general statute applying to the escape of all misdemeanants. A particular enactment found in the statute is operative as against general laws relating thereto.’ (55 Ill. App. 2d 260, 263, 204 N.E.2d 833, 835.)
Under the court’s reasoning, had prosecution been pursuant to section 31 — 6(b) error would have occurred. That is exactly the situation in the case at bar. The escape provisions of the Illinois State Farm Act (repealed by Public Act 77-2097) are now found in section 3 — 6—4 of the Unified Code of Corrections. Just as its predecessor was in Hale, section 3 — 6—4 is a particular enactment and operative as against all general laws (i.e., section 31 — 6) relating to the same subject matter. As such, section 3 — 6—4 preempts criminal prosecution under section 31 — 6.” People v. Cole (1980), 84 Ill. App. 3d 347,353,405 N.E.2d 347,351 (Barry, J., dissenting).
Assuming arguendo that the defendants’ prosecution under section 31 — 6(a) was proper, I believe that a reversal and a remandment for a new trial is nonetheless mandated because the trial court erred in allowing the State to introduce evidence of four burglary convictions at trial. In rejecting the defendant’s contention that the revelation to the jury of the underlying felonies of which he was convicted was error, the majority overlooks this court’s recent decision in People v. Slaughter (1980), 84 Ill. App. 3d 88, 404 N.E.2d 1058. In Slaughter, the defendant was convicted of escape under section 3 — 6—4(a). During both the opening statement and closing argument, the prosecutor made reference to the fact that at the time of his escape from Stateville Penitentiary the defendant was serving a term of 100 to 300 years for murder and a related burglary. On appeal, the defendant contended that these remarks, considered in conjunction with a number of other comments made by the prosecutor during his opening statement and closing argument, were highly prejudicial and constituted reversible error. This court agreed. “Although any one of the prosecutor’s remarks alone may not have been sufficient to constitute reversible error, the cumulative effect of those remarks so prejudiced the defendant that we believe he was deprived of a fair trial.” (84 Ill. App. 3d 88, 95, 404 N.E.2d 1058, 1064). More particularly, with regard to the prosecutor’s references to the nature of the underlying felonies, we found that although the fact of the defendant’s conviction was necessary to prove under section 3 — 6—4(a) that the defendant was in the custody of the Department of Corrections at the time of his escape, the revelation of the nature of the convictions was unnecessary. Noting that some State and Federal courts have adopted the practice in escape cases of introducing into evidence a certified copy of the prior judgment of conviction with the language revealing the nature of that conviction excised (United States v. Spletzer (5th cir. 1976), 535 F.2d 950; Fouts v. State (Fla. App. 1979), 374 So. 2d 22), we stated:
“[S]uch a procedure would allow the State to establish prior conviction and incarceration, some of the necessary elements of escape, while also preventing the jury from hearing the potentially prejudicial facts as to the nature of the earlier offense and the sentence imposed. In the instant case, no proper purpose was served by informing the jury of the defendant’s prior murder conviction or of his 100 to 300 year sentence. The only effect of allowing the particulars of the prior offense into evidence was that of prejudicing the defendant in the jury’s eyes. While one appellate opinion has asserted that it is best to allow.the trial court discretion in deciding what portions of the record of the prior conviction will be admitted (People v. Arbuckle (1966), 69 Ill. App. 2d 251, 215 N.E.2d 825), the better practice, we believe, is that referred to and outlined in United States v. Spletzer and Fouts v. State. Such procedure in no way hampers the State in its proof of the escape charge and it avoids the serious potential for prejudice inherent in allowing the jury to be informed of the nature of the prior offense and the punishment.” (84 Ill. App. 3d 88, 95-96, 404 N.E.2d 1058, 1064.)
In Fouts, the court concluded that it was reversible error to allow the prosecution to introduce into evidence the nature of the prior crime. Consistent with Fouts and in accordance with the views expressed by this court in Slaughter, I would reverse and remand for a new trial.
Although I dissent, I agree with the majority that the divergent views expressed by this district both in Cole and in the case at bar and by the first district in People v. Marble (1980), 84 Ill. App. 3d 1, 400 N.E.2d 923 (accord, People v. Hendrix (1980), 85 Ill. App. 3d 1040, 407 N.E.2d 847) regarding the propriety of prosecution for escape from an authorized absence under section 31 — 6(a) of the Criminal Code of 1961 create a number of problems for both State’s Attorneys and trial court judges, primarily. Although I firmly believe that the legislature has already manifested its intent that escapees from furlough, work release or day release are to be punished pursuant to the directives of section 3 — 13— 4(b) of the Unified Code of Corrections exclusively, I, too, would welcome any clarification by either the General Assembly or the supreme court which would alleviate the differences between this district and the first district appellate court on this issue.1
Such a step toward clarification had been taken by the Senate in the form of Senate Bill 804 (introduced April 10,1979), which would have amended section 31 — 6 to include failure to return from an authorized absence while sentenced to periodic imprisonment or work release (People v. Hendrix (1980), 85 Ill. App. 3d 1040, 1042 n.2, 407 N.E.2d 847, 848 n.2). Unfortunately, the bill was not acted upon in the Senate Judiciary II Committee during that legislative session.