Opinion
No. 76-767
Decided July 7, 1977. Rehearing denied July 28, 1977.
During pendency of appeal, imprisoned criminal defendant escaped.
Appeal Dismissed
1. CRIMINAL LAW — Appeal and Error — Escape — Appeal Pending — Appeal Dismissed — May Be Reinstated. Where defendant escaped while his appeal was pending, the appeal will be dismissed, but the defendant may apply to the appellate court for leave to reinstate his appeal upon his return to custody.
Appeal from the District Court of the County of El Paso, Honorable Patrick M. Hinton, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Deborah L. Bianco, Assistant Attorney General, J. Stephen Phillips, Assistant Attorney General, for plaintiff-appellee.
Allen, Kordick Wise, Lloyd C. Kordick, for defendant-appellant.
Defendant, David Lee Anderson, has appealed his conviction of theft and his sentencing as an habitual criminal. Prior to oral arguments on this appeal, defendant escaped from the penitentiary at Canyon City, and remains at large. The People moved to vacate oral arguments, which motion was granted over the objection of defendant's attorney. The People now move that the appeal be dismissed. No response has been filed by defendant's attorney.
[1] The course to be followed when a defendant escapes while his appeal is pending is within the sound discretion of the appellate court, absent a specific statutory procedure. Smith v. United States, 94 U.S. 97, 24 L.Ed. 32. Disposition by dismissal of pending appeals of escaped prisoners is a long-established principle of American law. Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377. We find no persuasive reason to adjudicate the merits of defendant's case when he is not subject to the jurisdiction of the court.
It is therefore the judgment of this court that this appeal be and hereby is dismissed, provided, however, the defendant may apply to this court for leave to reinstate the appeal upon his return to custody. The record on file with this court shall be returned immediately to the trial court.
Appeal dismissed.
JUDGE PIERCE and JUDGE RULAND concur.