Opinion
No. 2606-2.
April 19, 1978.
[1] Criminal Law — Review — Waiver — Escape From Work Release Program. A convicted person will be deemed to have waived his right to appeal, and a pending appeal will be dismissed, when such person fails to return to a work release program and is placed on escape status during the pendency of the appeal and remains at large at the time oral argument is scheduled.
Nature of Action: The defendant was charged with first-degree perjury.
Superior Court: A judgment of guilty was entered by the Superior Court for Lewis County, No. 4706, D.J. Cunningham, J., on September 23, 1976. The defendant was assigned to a work release program but failed to return and was placed on escape status.
Court of Appeals: Holding that the defendant waived his right to appeal, the court affirms the judgment and sentence.
John Panesko, Jr., and Panesko, Panesko Turner, for appellant (appointed counsel for appeal).
Jeremy Randolph, Prosecuting Attorney, and Charles R. Byrd, Deputy, for respondent.
[As amended by order of the Court of Appeals May 12, 1978, deleting directions that the opinion should not be published.]
Defendant Keith Nason appeals from a first-degree perjury conviction rendered by a Lewis County Superior Court jury. On February 11, 1978, defendant failed to return to a Washington State Work/Training Release program in Everett, where he had been assigned on July 27, 1977, by the Washington State Penitentiary. He was placed on escape status and was still at large on March 6, 1978, when his appeal was scheduled for oral argument.
[1] Prior to the hearing of oral argument on the merits of the appeal, the prosecuting attorney moved for a dismissal of the appeal in accordance with the holding in State v. Mosley, 84 Wn.2d 608, 528 P.2d 986 (1974). After argument of the motion, the court requested the prosecuting attorney to establish by affidavit of someone with personal knowledge the current escape status of the defendant. The court orally ruled that the appeal would be dismissed if defendant had not voluntarily or involuntarily been returned to custody within 10 days after March 6, 1978.
An affidavit by the supervisor of the Washington State Work/Training Release program in Everett establishes that defendant was still at large as an escapee as of March 9, 1978. Neither counsel has subsequently notified the court that defendant has returned to custody, either voluntarily or involuntarily.
Accordingly, the court declines to consider defendant's appeal on the merits, and holds that defendant has waived his right to prosecute the appeal. State v. Mosley, supra.
The judgment and sentence are affirmed.
PETRIE and REED, JJ., concur.