Saleem v. State, 58979

• Decision Date: 26 November 1979
• Docket Number: No. 58979,58979
• Citation: 152 Ga.App. 552,263 S.E.2d 490
• Parties: SALEEM v. The STATE.
• Court: Georgia Court of Appeals

Page 490

263 S.E.2d 490

152 Ga.App. 552

SALEEM v. The STATE.

No. 58979.

Court of Appeals of Georgia.

Submitted Oct. 31, 1979.

Decided Nov. 26, 1979.

Husam-Iddin Saleem, pro se.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Attys., for appellee.

BANKE, Judge.

The defendant was found guilty of armed robbery following a jury trial on May 10, 1978. Sentencing was deferred; and, prior to sentencing, he escaped from the custody of the sheriff. On May 26, 1978, he was sentenced in absentia to 20 years' imprisonment. On April 12, 1979, he was recaptured; and on May 18, 1979, he submitted to the trial court a motion for out-of-time appeal. The trial court denied the motion on the ground that the defendant by his escape had forfeited his right to appeal his conviction. From this order the defendant now appeals to this court. Held :

It is clear that where a defendant escapes after filing a notice of appeal he thereby loses his right of appeal. See Madden v. State, 70 Ga. 383 (1883); Moore v. Caldwell, 231 Ga. 485(1), 202 S.E.2d 425 (1973). We know of no logical reason for creating a different rule where, due to his escape, the defendant is unable to file a timely notice of appeal in the first place. Accord Yates v. Brown, 235 Ga. 391, 393, 219 S.E.2d 729 (1975) (Hill, Justice, concurring specially). Accordingly, we agree with the trial court that the defendant waived his right to appeal by remaining a fugitive during the period when he was authorized by statute to file a motion for new trial or a notice of appeal. In accordance with Estell v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975), we reject the defendant's contention that such a ruling violates his federal constitutional rights.

Judgment affirmed.

McMURRAY, P. J., and UNDERWOOD, J., concur.