Derrick v. State

406 So. 2d 48 (1981)

Charlie C. DERRICK v. STATE of Mississippi.

No. 53226.

Supreme Court of Mississippi.

November 25, 1981.

Thomas L. Booker, Philadelphia, for appellant.

Bill Allain, Atty. Gen., by Marvin L. White, Jr., Special Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ON MOTION

LEE, Justice, for the Court:

Appellant, Charlie C. Derrick, was convicted in the Circuit Court of Neshoba County, Mississippi, for armed robbery and sentenced to a term of forty years with the Mississippi Department of Corrections and he has appealed to this Court.

The state has filed a motion to dismiss the appeal and has attached to its motion an affidavit of the Sheriff of Neshoba County that appellant escaped from the Neshoba County Jail on August 28, 1981, and is presently at large. The state requests that the rule in Jones v. State, 218 So. 2d 705 (Miss. 1969), be modified to provide that an appeal be dismissed when an appellant escapes from custody pending his appeal in a felony case. The Court stated in Jones the following:

The new rule is that where a person is convicted of a felony and perfects an appeal to this Court and escapes from custody pending his appeal and is still a fugitive when his case is called for hearing on the merits such action shall be deemed an abandonment of the appeal and will be subject to a motion by the State to dismiss such appeal. However, such dismissal shall be subject to be reinstated on motion of appellant showing good cause therefor. (218 So.2d at 706).

We are of the opinion that the motion to dismiss the appeal should be sustained and the rule expressed in Jones, supra, is modified in order to express the following:

The new rule is that where a person is convicted of a felony and perfects an appeal to this Court and escapes from custody pending his appeal such action shall be deemed an abandonment of the appeal and will be subject to a motion by the state to dismiss such appeal. However, such dismissal shall be subject to be reinstated on motion of appellant showing good cause therefor.

MOTION SUSTAINED.

All Justices concur.