This court also has cited this established rule, which is not in dispute. See, e.g., State v. Janson, 964 S.W.2d 552, 554 (Mo.App.1998). The exclusive/non-exclusive dichotomy dates back to State v. Funk, 490 S.W.2d 354 (Mo.App.1973), which surveyed cases nationwide, due to scant Missouri authority at that time, and followed what then was a majority view and now is the law of our state.
Cases may be found in which an appellate tribunal applied the rule, as well as cases in which an appellate tribunal determined the situation did not warrant application of the rule. See, e.g.,State v. Massey, 98 S.W.3d 105, 107 (Mo.App. 2003) (applied rule where sentencing delayed by more than four months) and State v. Janson, 964 S.W.2d 552, 554 (Mo.App. 1998) (rule not applied where Defendant gone for 15 days and did not pose danger to society). Cases also exist where the appellate court has exercised its discretion not to apply the rule even though the situation may have warranted it.
930 S.W.2d at 57. Here, Defendant opposes dismissal of his appeal under the escape rule by arguing that the facts here are analogous to those in State v. Janson, 964 S.W.2d 552 (Mo.App. 1998). We disagree.
Under the escape rule, an appellate court can, in its discretion, dismiss an appeal if the delay caused by an accused's escape adversely impacted the criminal justice system. State v. Janson, 964 S.W.2d 552, 554 (Mo.App. S.D. 1998). Here, Johnson failed to appear for his January 26, 2009 sentencing hearing, purportedly because he did not know that his January 14, 2009 hearing had been continued to that date.
"There is no threshold amount of time an appellant must have escaped justice before dismissal is allowed. Flights justifying dismissal have ranged from ten-and-one-half years, [ State v.] Gilmore, 727 S.W.2d [469 (Mo.App. 1987)] at 469, to fifteen days, State v. Janson, 964 S.W.2d 552, 554 (Mo.App. 1998)." Holmes v. State, 92 S.W.3d 193, 196 (Mo.App. 2002).
This is a relevant consideration in deciding whether to apply the escape rule. See, e.g., State v. Laws, 121 S.W.3d 571, 573-74 (Mo.App. 2003); State v. Janson, 964 S.W.2d 552, 554 (Mo.App. 1998). It is axiomatic that the operation of a motor vehicle by a drunken individual poses a danger to the driving public.
For example, this Court found that a fifteen-day delay in sentencing did not require application of the escape rule. State v. Janson, 964 S.W.2d 552, 554 (Mo.App.S.D. 1998). On the other hand, in Holmes v. State, 92 S.W.3d 193 (Mo.App.W.D. 2002), the court found that a period of three weeks was an acceptable period in which to apply the escape rule when the defendant fled the courthouse during the trial with stolen money, which had been received into evidence.
There is no threshold amount of time an appellant must have escaped justice before dismissal is allowed. Flights justifying dismissal have ranged from ten-and-one-half years, Gilmore, 727 S.W.2d at 469, to fifteen days, State v. Janson, 964 S.W.2d 552, 554 (Mo.App. 1993). Three weeks — the time Holmes was absent — falls toward the lower end of the scale, but still within an acceptable range.
Surritte argued on appeal that the trial court erred in applying the escape rule because the escape did not adversely affect the criminal justice system, as he was gone only four days and there was no evidence that he posed a danger to society or harmed anyone during his absence. Id. The appellant relied on State v. Janson , 964 S.W.2d 552, 554 (Mo.App. 1998). In that case, the defendant had been missing for fifteen days after conviction and before sentencing, which required the rescheduling of the sentencing hearing. Nevertheless, the court in Janson declined to apply the escape rule, noting that there was no indication the defendant posed a danger to society during the time he was missing.
Continuing we noted: The charge against McClain arose from the same incident as the charges against the accused in State v. Janson, 964 S.W.2d 552, (Mo.App. 1998), and the accused in State v. Condict, 952 S.W.2d 784 (Mo.App. 1997). "[E]ven if [McClain] saw the contents [of the blue bag], and even if he recognized them as items used to manufacture methamphetamine, such knowledge alone does not support a finding that [McClain] had possession of the items."