From Casetext: Smarter Legal Research

State v. Brady

Supreme Court of Utah
Sep 20, 1982
655 P.2d 1132 (Utah 1982)

Opinion

No. 17679.

September 20, 1982.

Appeal from the Sixth District Court, Sevier County, Don V. Tibbs, J.

Milton T. Harmon, Nephi, Ronald J. Yengich, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.


In Hardy v. Morris, Utah, 636 P.2d 473 (1981), we dismissed the appeal of a defendant who had escaped from custody, reasoning that a ruling adverse to the appellant could not be enforced because he had placed himself outside the control of the judicial system. That holding does not define whether or when such an appeal can be reinstated.

In this case, appellant filed a timely notice of appeal after conviction and sentence for aggravated kidnapping, aggravated robbery, and unlawful taking of a motor vehicle. Five months after he commenced serving his sentence in the Utah State Penitentiary, on August 7, 1981, appellant escaped. On motion of the State, on September 21, 1981, this Court dismissed appellant's appeal on the authority of Hardy v. Morris, supra. Thereafter, appellant was recaptured in Idaho and reincarcerated in the Penitentiary on March 23, 1982. Appellant now moves to reinstate his appeal.

By escaping and remaining at large until he was involuntarily returned to custody, appellant abandoned his appeal and now stands in the same position as if no appeal had been taken. Mitchell v. State, Fla.App., 294 So.2d 395 (1974); Weser v. State, 224 Kan. 272, 579 P.2d 1214 (1978); United States v. Smith, 544 F.2d 832 (5th Cir. 1977). In this circumstance, an appeal dismissed prior to his return to custody will not be reinstated.

This action violates no right under the Utah Constitution, Art. I, § 12, since appellant had his "right to appeal" and abandoned it. It likewise violates no federal constitutional right. Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975); Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897).

Motion denied.


Summaries of

State v. Brady

Supreme Court of Utah
Sep 20, 1982
655 P.2d 1132 (Utah 1982)
Case details for

State v. Brady

Case Details

Full title:THE STATE OF UTAH, PLAINTIFF AND RESPONDENT, v. DARREL EUGENE BRADY…

Court:Supreme Court of Utah

Date published: Sep 20, 1982

Citations

655 P.2d 1132 (Utah 1982)

Citing Cases

State v. Tuttle

The question is whether other grounds justify a refusal to reinstate the appeal. The State urges that under…

Staker v. Ainsworth

We have not hesitated in other instances to reverse case law when we are firmly convinced that we have erred…