for the alleged commission of a misdemeanor offense and to intentionally escape from custody commits a class and this to me specifically what happened in this case is that the trial court and a pretrial hearing which was requested by the defendant we in retrospect we probably should have we didn't really proceed in this manner on and again once the proceedings had concluded we realize that one of the trial had judge head on was dismissed the indictment but there's was the defendant in this case who made the motion we did agree to proceed on this basis i know there are limited own reasons under section one fourteen as too long a trial court can dismiss an indictment we did not object below i as i point out i believe in a footnote we could have we're not going to raise that issue for this court now because again we did agree in the core polow to proceed in this manner so you gone against the divine and would not have resulted in conviction of the defendant basically the court found that what happened in the pretrial proceedings was not a resolution on the merits for purposes of the job double jeopardy clause and that both parties were seeking more near ruling on a motion to dismiss so i believe that in the first instance regardless of the proprietor propriety of the judges on finding this court does have jurisdiction to hear this appeal defendants position is that in custody is tantamount to a roster of four and the state disagrees with das interpretation of the stand should in braxton in other cases they found that probable cause for her to be accosted me is not necessary in the statute that was decided in different contexts and a person can be in custody for various things for various reasons at the same time in this case the defendant was originally in custody for traffic violations he ran from the police then you could have been considered in custody for purposes of fleeing or alluding and moment those are misdemeanors offenses next where the indeed was contemporaneous with the investigation into what ultimately was found to be a felony is france so the state disagrees that in custody has to the passenger at first times the second time or so later found that stick the passenger actually informed the police officers where the copper wire came from and they didn't know that before is it that they didn't know that the that day they couldn't go any further with the investigation because the place the i q was in asked of a shoe company i don't believe that they were open at the time of night so the police and mediately wants to where the passenger who told them that the car where it came from the next day when they had them so i think what we can look at here is that the investor he should began while he was in custody and i think that falls into on what the harkonnen people versus skilling to be a problem is that the defendant should be rewarded for his good timing in what he escapes and i think that that's exactly what occurred here when he was in constant the to escape before the crime could be fully investigated i don't believe he should be rewarded for a minute that we should look at the fact that he was in custody the investigation began contemporaneously with that moment there was no formal stipulation the law it was just facts that we both agreed to that were shown by the police records and it is problematic that the trial court did not meet specific findings of fact in her ruling facts we're talking the judge made a ruling is some facts the the state is asking you to take the facts of this case and make a substitute legal ruling that an element of the defense was proved and the defense in it's just briefly again addressed the question of whether this was a quid all in this case because it believed that that's very important and i understand the finance position to be that simply because the trial court considered so was an acquittal of one of the elements of the charge against the defendant but there's nothing in the case choosing jass that any of the parties or the trial court meant to extend its ruling besides in the context in which it was made allow them the state to proceed on a felony indictment she did good judges not bound by her findings later on after listening to the evidence in this case and i think that that's an important distinction into the instructions if you was in custody for a felony or misdemeanor then just leave it to the jury to decide whether in fact it's caves so thank you so i believe that bright student would apply equally to the nature and the at that time i would agree that he was only a rostered formally arrested for a misdemeanor offense whether it was traffic's or counseling him a living however i don't think in custody should be equated with on