Baker v. State , 1982 Okla. Crim. App. LEXIS 250 ( 1982 )

MEMORANDUM OPINION

BUSSEY, Judge:

While serving a life sentence in the state penitentiary in McAlester, the defendant escaped from the Seminole County Jail, where he had been temporarily transferred pursuant to a writ of habeas corpus ad prosequendum. He was convicted of Escape from a Penal Institution, in violation of Laws 1976, ch. 175, § 1, now 21 O.S. Supp.1980, § 443, in Seminole County District Court, Case No. CRF-80-191, and from a sentence of two (2) years’ imprisonment, he has appealed.

As his sole assignment of error, the appellant argues that he should have been charged under 57 O.S.1971, § 56, Breaking Jail, and that he was thus improperly charged and convicted. This argument must fail. One remains an inmate of a state penal institution, albeit constructively, when he is temporarily absent therefrom, such as in the case before us. Boone v. State, 642 P.2d 270 (Okl.Cr.1982); Goodson v. State, 562 P.2d 521 (Okl.Cr.1977); McCoy v. State, 536 P.2d 1309 (Okl.Cr.1975). The appellant was properly charged.

Accordingly, the judgment and sentence appealed from is AFFIRMED,

BRETT, P. J., and CORNISH, J., concur.