Blassingame v. State , 155 Ga. App. 235 ( 1980 )

155 Ga. App. 235 (1980) 270 S.E.2d 399

BLASSINGAME
v.
THE STATE.

60167.

Court of Appeals of Georgia.

Submitted July 1, 1980. Decided July 10, 1980.

William W. Keith, III, for appellant.

Stephen A. Williams, District Attorney, for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted and convicted in Murray County for the offenses of burglary (two counts), and one count of aggravated assault. The defendant was sentenced to twenty years on each burglary, the sentences of these two counts to run concurrently, and ten years on the aggravated assault charge, to run consecutively with the burglary counts, for a total sentence of 30 years in prison.

After defendant's notice of appeal was filed but before this case was argued, a motion to dismiss defendant's appeal on the ground that he had escaped and was no longer in custody was filed in this court. The motion is supported by an affidavit of the sheriff of Bartow County. He states that on April 6, 1980, defendant escaped from the custody of the Bartow County jail and is still at large. Defendant's attorney has responded, contending that defendant is in custody and not a fugitive. The response is supported by the affidavit of the sheriff of Murray County who states that defendant is in custody in New Orleans, Louisiana.

While Gentry v. State, 91 Ga. 669 (17 S.E. 956); Madden v. State, 70 Ga. 383; and Yates v. Brown, 235 Ga. 391, 392 (1) (219 SE2d 729) would not require a dismissal upon recapture, nevertheless the evidence here is that he is not "in custody" in Georgia, but apparently is "in custody" in Louisiana.

As defendant has escaped and remains without the lawful custody and control of the authorities of this state, this case has become moot. Therefore, the motion to dismiss defendant's appeal must be granted. Golden v. State, 145 Ga. App. 36 (243 SE2d 303). See also Powers v. State, 151 Ga. App. 806 (261 SE2d 750) and cases cited therein. The public policy of this state is to deter escapes.

Appeal dismissed. Smith and Banke, JJ., concur.