State of Missouri, Respondent, v. Charles Selvy, Appellant

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, Respondent, v. Charles Selvy, Appellant Case Number: ED78918 Handdown Date: 04/02/2002 Appeal From: Circuit Court of Cape Girardeau County, Hon. William Syler, Judge Counsel for Appellant: Emmett D. Queener Counsel for Respondent: Richard A. Starnes Opinion Summary: Charles Selvy appeals the judgment entered upon his conviction by a jury for the class C felony of possession of a controlled substance and for the class A misdemeanor of attempted tampering with physical evidence. DISMISSED. Division Four holds: Where Selvy failed to appear for sentencing and remained at large for approximately 19 months, his escape adversely affected the criminal justice system, justifying dismissal of his appeal pursuant to the "escape rule." Citation: Opinion Author: Lawrence G. Crahan, Judge Opinion Vote: DISMISSED. Sullivan, P.J. and Mooeny, J., concur Opinion: Appellant Charles Selvy ("Defendant") appeals the judgment entered upon his conviction by a jury for the class C felony of possession of a controlled substance and for the class A misdemeanor of attempted tampering with physical

evidence. We dismiss his appeal. The facts most relevant to the dismissal of this appeal are as follows. Upon Defendant's conviction on February 5, 1999, the trial court set Defendant's final sentencing hearing for March 15, 1999, and allowed him to remain free on the existing bond. On March 15, Defendant failed to appear and a capias warrant was issued for his arrest. Defendant was not arrested until November 4, 2000, approximately nineteen months later. The court granted him time to employ new counsel and he was sentenced on December 4, 2000, to twelve years in the custody of the Department of Corrections on the possession charge and concurrent term of six months in the Cape Girardeau jail on the attempted tampering charge. Missouri courts have consistently held that a defendant who escapes or flees the jurisdiction of its courts either during trial or in the process of post-trial proceedings forfeits his right to an appeal. State v. Buff, 34 S.W.3d 856, 857 (Mo. App. 2000). Dismissal of an appeal under the escape rule is appropriate when the escape adversely affects the criminal justice system. Id.; State v. Troupe, 891 S.W.2d 808, 811 (Mo. banc 1995). The determination of whether there is an adverse affect is within the sound discretion of the appellate court. Buff, 34 S.W.3d at 857. The supreme court in Troupe noted that "[a] reviewing court may invoke procedural rules in order to protect the orderly and efficient use of its resources." 891 S.W.2d at 811. Continuing in this vein, the court concluded the following: In the present case, appellant was at large for more than eight months. His escape, therefore, hindered the administration of justice in his case by at least this amount of time. It strains credulity to postulate that such a delay does not have an adverse impact on the criminal justice system and the state's case. If appellant were successful on the merits of an appeal, the cause might be remanded for a new trial. In that event, the state could be prejudiced by lost or destroyed evidence and witnesses who are no longer available. Further, over time, witnesses' memories fade, subjecting them to impeachment and consequent diminished credibility. Id. at 810-11. Here, Defendant was at large for approximately nineteen months. Clearly, under Troupe, his escape adversely affected the criminal justice system. See Buff, 34 S.W.3d at 857 (court invoked escape rule after a six-week delay and further noted that the trial court was compelled to issue a capias warrant); State v. Bailey, 848 S.W.2d 611, 612 (Mo. App. 1993) (six-week delay); State v. Jackson, 928 S.W.2d 894, 895 (Mo. App. 1996) (ten-week delay). Defendant's appeal is dismissed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.