HEFFERNAN, J.
Although the state has moved for the dismissal of the appeal on the ground that the order is not appealable, that contention was rejected by this court on motion prior to oral argument. We therefore elect to dispose of the case on the merits.
The statute provides, insofar as it is pertinent:
"946.42 (3) Any person in custody under any of the following circumstances who intentionally escapes from custody may be imprisoned not more than...
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