dissenting.
I respectfully dissent. While a sentencing judge has wide authority and latitude to impose special conditions of probation, including a requirement that the defendant reside at a diversion center, I do not believe that the failure of a defendant to abide by such a requirement subjects him to prosecution for the felony offense of escape, but merely to revocation of his probation under OCGA § 42-8-38. Many limitations placed on a probationer pursuant to a probation order necessarily result in the limitation of his freedom of movement. I cannot agree with the majority’s conclusion that because of the special condition of probation imposed on the appellee, “it is abundantly clear that he was within the ‘lawful custody’ of the diversion center,” and, therefore, subject to the escape statute. As the majority recognizes, “[p]enal statutes are always construed strictly against the state and liberally in favor of human liberty.” Curtis v. State, 102 Ga. App. 790, 801-802 (118 SE2d 264) (1960); Olson v. State, 166 Ga. App. 104 (5) (303 SE2d 309) (1983).
I am authorized to say that Chief Judge Birdsong, Judge Sognier, and Judge Benham join in this dissent.