MARY ANN BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal addressed whether a criminal appellant's appeal should be dismissed after she escaped from prison, then returned to custody. The court held that an appeal will not be dismissed if the appellant remains under the court's jurisdiction when the dismissal motion is decided, though escape ordinarily allows the state to move for dismissal.
The court held that an appeal will not be dismissed if the appellant is under the court's jurisdiction at the time the motion to dismiss is decided. However, if the appeal is dismissed after an escape, it will not be reinstated upon the appellant's return to jurisdiction. Escape does constitute grounds for dismissal and a waiver of appeal rights, but dismissal is discretionary when the appellant is in custody.
[1] An escaped prisoner's appeal is subject to dismissal if the appellant is not under the jurisdiction of the court at the time a motion to dismiss is decided.
[2] An appeal dismissed due to escape will not be reinstated upon the appellant's return to the court's jurisdiction.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The dismissal of an appeal is not a recognized form of punishment for escape, nor should it be without specific legislation, and as was said in Marshall, escape does constitute a waiver of an appeal right.”
Establishes that while escape may justify dismissal, it should not serve as punishment absent legislation, and that dismissal is permissive rather than mandatory.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMary Ann Brown was an appellant in a criminal case. While her appeal was pending, she escaped from prison. The state attorney general moved to dismiss…
The full statement of facts, procedural history, and disposition for this case are member content.
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DAUKSCH, Chief Judge.
This is before us on a motion to dismiss a criminal appeal. The motion was filed when the attorney general found out that appellant had escaped from prison. After receiving the motion we ordered appellant, through her counsel, to show cause why the appeal should not be dismissed.
Appellant responded by saying, essentially, that although she had escaped, she was now back in prison and awaits her prosecution for the escape. She does not want her appeal dismissed and cites Marshall v. State, 344 So. 2d 646 (Fla.2d DCA), cert. denied, 853 So. 2d 679 (Fla.1977), as authority for us to allow her appeal to proceed.
We agree with the decision in Marshall for the reasons stated in that opinion. Concisely stated, because appellant is in custody under the jurisdiction of this court and subject to the mandate of this court, we would not be wasting our time in reviewing the case. The rationale for dismissing an appeal of an escaped prisoner is set out in Woodson v. State, 19 Fla. 549 (1882), as cited in Marshall. That rationale fails when the absconded appellant finds herself back in Florida custody before the appeal is dismissed. This is not to say we would reinstate an appeal once it had been dismissed after escape and before capture. Nor do we mean to encourage short vacations from prison. The dismissal of an appeal is not a recognized form of punishment for escape, nor should it be without specific legislation, and as was said in Marshall, escape does constitute a waiver of an appeal right.
However, we hold that if an appellant in a criminal case escapes from lawful confinement, or voluntarily, without authorization, absents himself from the jurisdiction of this court while on probation, then his appeal is subject to dismissal and if dismissed will not be reinstated upon return to the jurisdiction of the court. The appeal will not be dismissed if the appellant is under the jurisdiction of this court at the time the motion to dismiss is decided.
MOTION DENIED.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur.
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State v. Gurican, 576 So. 2d 709 (Fla. 1991)…n to the trial court’s jurisdiction prior to filing her appeal distinguishes her case from Woodson and Bretti and, therefore, the district court correctly refused to dismiss her appeal. In support of her argument, Gurican relies upon Brown v. State, 388 So. 2d 586 (Fla. 5th DCA 1980), and Marshall v. State, 344 So. 2d 646 (Fla. 2d DCA), cert. denied, 353 So. 2d 679 (Fla.1977), which refused to dismiss escapees’ appeals after their return, and invites this Court to adopt the reasoning set forth therein.2 We [*…1 / 2
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Cornell Chambers v. State, 391 So. 2d 352 (Fla. 5th DCA 1980)…ppeal of the judgment of conviction, the state points out that the new notice of appeal is tantamount to an attempt to reinstate the previous appeal. The denial of the state’s motion would be in direct contravention of our holding in Brown v. State, 388 So. 2d 586, 587 (Fla. 5th DCA), wherein we said: that if an appellant in a criminal case escapes from lawful confinement, or voluntarily, without authorization, absents himself from the jurisdiction of this court while on probation, then his appeal is subject…
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Gurican v. State, 552 So. 2d 975 (Fla. 1st DCA 1989)…he appellant to the court’s jurisdiction has undercut the historical premise upon which the appeals of escapees have been traditionally dismissed, the motion to dismiss this appeal is denied. 344 So. 2d at 648. By the same token, in Brown v. State, 388 So. 2d 586, 587 (Fla. 5th DCA 1980), the court concluded that— because appellant is in custody [after an escape] under the jurisdiction of this court and subject to the mandate of this court, we would not be wasting our time in reviewing the case. ... The dis…
Authorities Cited
- Woodson v. State, 19 Fla. 549 (Fla. 1882)
- Marshall v. State, 344 So. 2d 646 (Fla. 2d DCA 1977)