State v. Sterner , 124 Or. App. 439 ( 1993 )

De MUNIZ, J.

We dismissed defendant’s appeal in an order of dismissal. Defendant filed a petition for review, which we treat as one for reconsideration. ORAP 9.15(1). We allow reconsideration and adhere to our order.

Defendant was convicted of theft in the second degree. ORS 164.045. The trial court suspended execution of sentence and placed defendant on probation. Defendant filed a timely notice of appeal and duly filed his appellant’s brief in this court. Thereafter, the state moved to dismiss defendant’s appeal “for the reason that defendant has absconded from probation during the pendency of this appeal and a warrant has been issued for his arrest.” The motion was supported by an affidavit of counsel for the state. We allowed the state’s motion, citing State v. Smith, 312 Or 561, 822 P2d 1193 (1992).

Defendant contends that Smith does not support our order of dismissal, because review in the Supreme Court is discretionary, whereas in this court “defendant has a statutory right to a direct appealf.]”¹

Defendant is correct that the Supreme Court’s dismissal of Smith’s petition for review was based on the exercise of discretion in the sense that it is wholly within its discretion whether to grant review and/or decide the merits of a criminal case. However, in its opinion in Smith, the Supreme Court relied on two prior cases, State v. Broom, 121 Or 202, 253 P 1042, 253 P 1044 (1927), and City of Portland v. Parchen, 113 Or 209, 231 P 980 (1925). InParchen, the court dismissed the appeal because it did not have jurisdiction to hear an appeal from a conviction for violation of a city ordinance. 113 Or at 210. Nevertheless, the court commented that “[i]t is a substantial and just rule that courts will not hear an appeal while the appellant is fleeing from justice.” 113 Or at 210.

In Broom, the state did not file its motion to dismiss the defendant’s appeal until after the case had been heard and decided on the merits. Although the court declined to dismiss the appeal, it said that it had “the power, in [its] discretion, to dismiss the appeal where the appellant is a fugitive from justice[.]” 121 Or at 210. In support of that conclusion, the court stated:

“It is not necessary for an appealing defendant, whether convicted of a misdemeanor or a felony, to appear in person in the appellate court. In either case he may appear by attorney. However, to set a precedent which enables a felon who has means or friends who will become his bail to take himself without the jurisdiction of the court by flight or concealment and await the determination of his case on appeal would, in the opinion of the writer, be poor law enforcement. If such policy is adopted by this court, it points the way to this class of criminals to go unwhipped of justice, because, to announce a doctrine that the criminal may flee to parts unknown after giving a bail bond, and there await the action of the appellate court on his appeal, would be virtually to put it within the power of the man of means to avoid the penalties fixed by law.” 121 Or at 208-09.

Although the statements we have quoted from Parchen and Brown are dicta, they reveal that, even when a criminal appeal may be taken as matter of statutory right,² the appellate court retains the discretion to dismiss an appeal when the appellant is a “fugitive from justice.”³

Here, it is unrefuted that defendant has absconded from probation and is a “fugitive from justice.” A criminal defendant should not be able to enjoy the benefits of the law while unlawfully avoiding its rigor. Accordingly, we adhere to our exercise of our discretion dismissing his appeal.

Reconsideration allowed; order of dismissal adhered to.

1 ORS 138.020 provides:

“Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in the cases prescribed in ORS 138.010 to 138.310, and not otherwise.”

ORS 138.040 provides, in part:

“Except as provided under ORS 138.050, the defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 in a district or circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060(3).”

2 At the time, 1 Oregon Laws, Section 1606 (Olson 1920), provided:

“An appeal to the supreme court may be taken by the defendant from a judgment on a conviction in a circuit court * *

Section 1608 provided:

“An appeal maybe taken as provided in [section 1606] as a matter of right.”

3 We note that in Ortega-Rodriguez v. United States, 507 US _, 113 S Ct 1199, 1203, 122 L Ed 2d 581 (1993), the United States Supreme Court stated:

“It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.”

In Ortega-Rodriguez, the court identified enforceability, disentitlement to court resources, deterrence and the advancement of the efficient, dignified operation of an appellate court as theories underlying the dismissal of appeals filed by fugitives from justice.