State v. John
| Decision Date | 30 October 1973 |
| Docket Number | No. S,S |
| Parties | STATE of Wisconsin, Respondent, v. Ervin Chris JOHN, Appellant. tate 139. |
| Court | Wisconsin Supreme Court |
Joan F. Kessler, Milwaukee, for appellant.
Robert W. Warren, Atty. Gen., James H. Petersen, Asst. Atty. Gen., Madison, for respondent.
The briefs discuss only the merits of the issues raised by the petition, but we do not reach such questions because the merits of the petition were not passed upon or considered by the trial court. The only proper issue on this appeal is whether or not the trial court was correct in dismissing the petition because the petitioner had escaped and was a fugitive from justice at the time he was to appear in court and give testimony on his petition. This issue is considered sua sponte as the basis for disposition because of its importance as a question of first impression in this state. We think the trial court properly dismissed the petition and, while the record does not show it was dismissed on its merits, we believe that is the proper effect of the dismissal.
In many cases, the question of the effect of an escape on pending litigation arises during appeal to an appellate court. In cases of the dismissal of the appeal, the result is generally put on the ground of mootness or waiver. An escape does not render moot a direct review of a conviction in the strict sense, whether by appeal or writ of error; but the matter may become moot because if the conviction is affirmed the accused is not likely to return to confinement voluntarily to submit to the sentence and if there is a reversal and a new trial granted, whether the convict will return for the new trial is questionable--the answer depending on what he considers is his best interests. Consequently, the granting of a new trial in such cases may be a useless act.
The hearing and the deciding of an appeal does not require the presence of the convict in court, but nevertheless some courts have required the defendant to be in custody and under the power of the court. In Smith v. United States (1876), 94 U.S. 97, 24 L.Ed. 32, the supreme ocurt ordered that unless the escapee submitted himself to the highest state court's jurisdiction on or before the first day of its next term, the cause would be left off the supreme court docket. See also Bonahan v. Nebraska (1887), 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854, where the case was stricken from the appellate docket on the last day of the term. Similarly, in Eisler v. United States (1949), 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897, where an accused fled the United States after being held in contempt of Congress and after certiorari had been granted by the supreme court, the case was left off the docket and dismissed some five months later. These cases are illustrative of the older practice to defer the order of dismissal until the escapee has had a reasonable time to change his mind and submit to the court's jurisdiction. See 18 Geo.Wash.L.Rev. 427 (1950) and 4 Am.Jur.2d, Appeal and Error, pp. 768, 769, sec. 275. This procedure avoids the possibility of mootness.
However, in its expression in 1970, the supreme court stated in Mollinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586, In that case, the dismissal took place immediately and was not delayed until the end of the term. The case does not state the grounds for the disentitlement of the right to access to the courts. It is not imperative for an appellate court to dismiss an appeal when a convict escapes, but it is considered to be the better practice for a reviewing court ordinarily not to proceed with the appeal, 24A C.J.S. Criminal Law § 1825(4), 485.
The difficulty with the ground of waiver is the element of knowledge of the collateral effect of an escape. True, an escapee knows he has become a fugitive from justice--this is a natural consequence of his act; but is it foreseeable as a natural result that all pending litigation will be dismissed? In State ex rel. Ruetz v. LaGrange Circuit Court (Ind.Sup.Ct.1972), 281 N.E.2d 106, the convict was a fugitive from justice at the time the court considered his motion to correct errors and the court said in denying relief, 'By so voluntarily absenting himself from the court's jurisdiction, the relator has...
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...nor even after Braun is there a rule in Wisconsin that by escaping a defendant waives her claims for relief. See State v. John, 60 Wis.2d 730, 734, 211 N.W.2d 463 (1973); see also Braun, 185 Wis.2d at 161-62 n. 3, 516 N.W.2d 740. In John the court noted only [t]he difficulty with the ground......
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Braun v. Powell
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