People v. Anderson , 39 Colo. App. 497 ( 1977 )

566 P.2d 1369 (1977)

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
David Lee ANDERSON, Defendant-Appellant.

No. 76-767.

Colorado Court of Appeals, Div. II.

July 7, 1977.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Deborah L. Bianco, J. Stephen Phillips, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Allen, Kordick & Wise, Lloyd C. Kordick, Colorado Springs, for defendant-appellant.

ENOCH, Judge.

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.

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.

PIERCE and RULAND, JJ., concur.