(concurring) — Beck was tried and convicted of contributing to the delinquency of a minor in a nonjury trial in the Roxbury District Court on August 10, 1977. He appealed the conviction to the King County Superior Court for a trial de novo which was set to be heard on December 6, 1977. Prior to that date, Beck's counsel had filed several motions, including a motion to dismiss the charges based upon the unconstitutionality of the statute under which the complaint had been filed. The trial judge to whom the case was assigned concluded that the notice raising the constitutional issue gave too short a time for proper presentation and continued the matter to January 26, 1978.
Defense motions were thereafter noted for argument on January 12, 1978. During the pendency of this prosecution, Beck was in custody and a participant in the King County jail work release program. On January 6, 1978, he failed to return to jail from work. On January 12, 1978, Beck's motions were stricken from the criminal motions calendar *643because of his abscondence. On January 17, 1978, the State filed a motion to dismiss the appeal which was noted for hearing on February 8, 1978.
Beck was arrested sometime after January 26, 1978, and returned to custody. On February 8, 1978, the court, with Beck in attendance, granted the State's motion to dismiss the appeal to Superior Court. Beck appealed the order of dismissal.
He argues that it is error to dismiss his appeal even though he escaped since he was returned to custody before the order of dismissal was entered. He contends that being present and prepared for argument on February 8 entitled him to proceed with his appeal. The State contends that a defendant who fails diligently to prosecute his appeal is subject to having the appeal dismissed. It is argued that the decision is discretionary and there was no abuse of discretion here. The State also cites civil decisions holding that disobedience of a court order may justify the dismissal of the appeal.
The Supreme Court first considered the effect of the escape of a criminal defendant while his appeal was pending in State v. Handy, 27 Wash. 469, 67 P. 1094 (1902). Relying on cases from New York, Massachusetts, California and the United States Supreme Court, our court held:
It has been uniformly decided that an appellate court will refuse to hear a criminal case on an appeal or a writ of error where appellant or plaintiff in error has escaped and is not within the control of the court below, either actually by being in custody, or constructively by being out on bail.
State v. Handy, supra at 470. As rationale for the rule, the court at page 471 quoted with approval Mr. Chief Justice Waite in Smith v. United States, 94 U.S. 97, 24 L. Ed. 32 (1876):
"If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it. and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not *644inclined to hear and decide what may prove to be only a moot case."
The court continued:
The usual practice in such cases seems to be to make an order directing the dismissal of the appeal, to take effect on a certain day, unless in the meantime the appellant returns and delivers himself into custody. In conformity with such practice, the appeal in this case will be dismissed sixty days from the date of filing this opinion, unless before that time the appellant returns and delivers himself into custody.
State v. Handy, supra at 471.
The grace period in Handy must be considered in light of the discussion in State ex rel. Soudas v. Brinker, 128 Wash. 319, 323-24, 222 P. 615 (1924), where the court said in response to a motion to reinstate the appeal:
Some other courts have followed the same practice. But whether the court will dismiss at once or as of some future date is a matter of discretion wholly. The practice is not according to nor based upon any statute and is in no manner binding. In this particular case we refuse to exercise our discretion to dismiss as of some future date. The fault is entirely with the appellant that his appeal was dismissed and that he did not file his statement of facts within the statutory period, and we see no reason why we should, at this late date, set aside our former order dismissing the appeal, and we refuse so to do.
The State and Beck rely upon the most recent Supreme Court decision, State v. Mosley, 84 Wn.2d 608, 528 P.2d 986 (1974). Following conviction, Mosley appealed to the Court of Appeals which affirmed the trial court. The Supreme Court then granted his petition for review but before the day set for oral argument, the court was notified that Mosley had escaped from custody. A motion to dismiss the appeal followed and the court held:
In criminal cases the rule is well settled that where the defendant flees from the jurisdiction pending the appeal, he thereby waives his right to prosecute the appeal, unless within a time fixed he returns and surrenders *645himself into the custody of the proper officer or gives bail for his appearance.
State v. Mosley, supra at 609.
The question was subsequently before us in State v. Nason, 20 Wn. App. 433, 579 P.2d 366 (1978). Nason appealed from a first-degree perjury conviction. On February 11, 1978, he failed to return from a work release program to which he had been assigned by the state penitentiary. He was placed on escape status and was still at large on March 7, 1978, the date scheduled for oral argument of his appeal. Prior to the oral argument on the merits, the prosecuting attorney moved for dismissal of the appeal. The court orally ruled that the appeal would be dismissed if the defendant had not voluntarily or involuntarily been returned to custody within 10 days after March 6, 1978. He did not and on April 19, 1978, we declined to consider the appeal and affirmed.
Neither State v. Mosley, supra, nor State v. Handy, supra, hold that a trial court must delay entry of an order dismissing the appeal of an escaped defendant for a period of time to allow the escapee to return or be returned to custody. The only Washington case that directly addresses this issue, State ex rel. Soudas v. Brinker, supra, makes the decision to dismiss an appeal under such circumstances discretionary. State ex rel. Soudas v. Brinker, supra at 322. Beck's return to custody prior to entry of the order of dismissal on February 8 does not preclude dismissal of his appeal. He was not in custody on the scheduled January 26 hearing date. Both the United States Supreme Court and the Ninth Circuit have held that dismissal is appropriate when a convicted escapee does not return to custody in time for his appeal. Molinaro v. New Jersey, 396 U.S. 365, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970); United States v. Wood, 550 F.2d 435 (9th Cir. 1976); United States v. Villegas-Codallos, 543 F.2d 1124 (9th Cir. 1976). The trial court, at the February 8 hearing, could properly dismiss thé appeal when it was established that Beck had voluntarily *646absented himself from the jurisdiction on the date set to hear his appeal.
I would affirm.