dissenting:
In affirming the defendant’s conviction for escape under section 31 — 6(a) of the Criminal Code (Ill. Rev. Stat. 1977, ch. 38, par. 31 — 6(a)), the majority rejects the defendant’s contention 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 failure to return from furlough, and consequently prosecution under section 31 — 6(a) was erroneous. I would be inclined to join with the majority in view of various decisions of the Illinois Supreme Court which permit prosecutorial discretion in cases where a defendant’s act violates more than one statute, each of which requires different proof and allows for different defenses (People v. Henderson (1978), 71 Ill. 2d 53, 373 N.E.2d 1338; People v. Brooks (1976), 65 Ill. 2d 343,357 N.E.2d 1169; People v. Gordon (1976), 64 Ill. 2d 166, 355 N.E.2d 3; People v. McCollough (1974), 57 Ill. 2d 440,313 N.E.2d 462) were it not for the fact that the legislative history as well as the very language of the relevant statutes reveals a clear legislative intent that a failure to return from furlough is to be prosecuted under section 3 — 6—4(a) exclusively. For these reasons, I respectfully dissent.
Prior to January 1, 1973, the appropriate sanction for a failure to return from furlough was found in section 4 of “An Act concerning furloughs for qualified inmates of the State prison system for certain purposes.” (Ill. Rev. Stat. 1971, ch. 108, par. 134). Section 4 provided that a failure to return from furlough was to be deemed an escape from the custody of the Department of Corrections, “and punishable as provided in Section 17 of ‘An Act in relation to the Illinois State penitentiary ° * V ” Section 17 of that Act (Ill. Rev. Stat. 1971, ch. 108, par. 121) provided that escapes or attempted escapes from the Illinois State penitentiary or an employee thereof constituted a felony, and upon conviction a prisoner guilty of escape or attempted escape under section 17 could be sentenced to a period of imprisonment of not less than one nor more than 10 years.
Public Act 77-2097 (effective January 1, 1973) created the Unified Code of Corrections and repealed both “An Act concerning furloughs for qualified inmates of the State prison system for certain purposes” and “An Act in relation to the Illinois State penitentiary” (Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 5—1). Section 3 — 11—1 of the Unified Code of Corrections, which currently deals with furloughs, does not provide for sanctions for a failure to return from furlough (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 11—1). That subject is now covered in sections 3 — 13—4(b) and 3 — 6—4 of the Uniform Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 3 — 13—4(b), 3 — 6—4). Section 3 — 13—4(b) provides that the Department of Corrections “shall provide sanctions for unauthorized absences which shall include prosecution for escape under Section 3 — 6—4.” (Emphasis added.) Section 3 — 6—4(a) provides that a failure to return from furlough, work- or day-release constitutes a Class 3 felony.
On the basis of this legislative history it is clear that the legislature intended a person committed to the Department of Corrections who fails to return from furlough not to be tried for the crime of escape under section 31 — 6(a) but rather to be disciplined pursuant to the provisions of section 3 — 6—4(a), or referred to the State’s attorney for prosecution under section 3 — 6—4. Arguably, under the previous furlough statute, a failure to return from furlough, like a failure to return from work- or day-release, could result in prosecution under either the Illinois State Penitentiary Act (Ill. Rev. Stat. 1971, ch. 108, par. 121) or the escape statute.1 Obviously, the legislative scheme was to treat all unauthorized absences from correctional facilities similarly. The legislature did not truly distinguish an “over the wall” escape from a maximum security institution such as Stateville or Pontiac from a failure to return from an authorized absence, such as a furlough, as far as sanctions were concerned.
The passage of the Unified Code of Corrections, however, reflects a conscious effort by the General Assembly to treat these vastly disparate forms of unauthorized absence differently. In the case of a violation of furlough, work-release, or day-release, the Department of Corrections is given wide latitude in providing an appropriate sanction. Under section 3 — 13—4(b), sanctions are not limited to prosecution for statutory violations. The statute merely provides that sanctions “shall be provided.” However, if the Department decides criminal prosecution is mandated, it appears the prosecution shall be only under section 3 — 6—4. It is evident from the very words of section 3 — 13—4(b) itself that prosecution under section 3 — 6—4 is the most serious sanction available to the Department of Corrections regarding the discipline of residents who fail to return from furlough (and work- and day-release as well), and as such, the only sanction. It seems clear that prosecution for escape under section 31 — 6(a) is limited to all escapes other than failure to return from authorized absences.
There is an additional important line of reasoning that suggests the prosecution of the defendant under section 31 — 6(a) was erroneous here. “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.
I would reverse the defendant’s conviction.
The previous work release statute (Ill. Rev. Stat. 1971, ch. 38, par. 123 — 7) provided that a failure to return from work- or day-release constituted an escape, and subjected the escapee to possible prosecution “under any applicable statute.” This statute was also repealed by Public Act 77-2097, and the disciplinary- sanctions for a failure to return from work- or day-release too are found in section 3 — 6—4(a) of the Corrections Code.