(dissenting) — The opinions by my esteemed brothers Williams and Farris arrive at the same result for different reasons. I respectfully dissent to each.
My brother Williams' opinion makes the dismissal entirely discretionary, without any standards or guidelines. While the defendant could have been tried in absentia on January 26, 1978, there is no record made of any action taken by the courts on the date set for trial. Secondly, it is the Superior Court that is dismissing the appeal in this case; RCW 10.10.010 applies only to courts of limited jurisdiction, and is therefore inapplicable here. JCrR 6.03(b) again has no application here because its time requirements were met and the Superior Court had jurisdiction to hear the case.
My brother Farris' opinion deals precisely with the issue before the court but he seeks to make the grace period discretionary rather than mandatory, relying upon State ex rel. Soudas v. Brinker, 128 Wash. 319, 222 P. 615 (1924). The reliance upon Soudas is misplaced.
Soudas is the only Washington case brought to our attention wherein the court suggested it would not follow the practice allowing a grace period. In Soudas the judgment and sentence were entered by the Superior Court on January 31, 1917, and on the same day Soudas gave notice of appeal. On March 4, 1917, before any proposed statement of facts was served and filed, Soudas escaped from the King County jail. On May 18, 1917, the appeal was dismissed because of Soudas' escape. He was not again in custody until July 30, 1923, more than 6 years after his escape. Under the statutes and appellate rules then in effect, timely filing of a properly certified statement of facts was jurisdictional. After his return to custody, Soudas sought a writ to compel the trial court to sign and certify a proposed statement of facts and moved to reinstate the appeal. The *647Supreme Court held that the filing of the proposed statement of facts more than 90 days after the time of the appeal begins to run
is wholly unauthorized and is a nullity, and the trial court is without jurisdiction to certify it. But did that court certify this proposed statement we would be required to strike it for the reasons we have given. We will not do a useless thing and require the lower court to certify to the statement simply that we may strike it after it has reached here.
State ex rel. Soudas v. Brinker, supra at 322. The court's discussion at pages 323-24 of the discretionary nature of the grace period is surplusage to the jurisdictional basis of the opinion, and therefore not binding authority.
It must be borne in mind that the dismissal of an appeal because a defendant has escaped from custody is an extraordinary penalty imposed upon a defendant in addition to the others which may follow as a result of his escape. RCW 9A.76.120-.130. Ordinarily a party who does not appear or is not present or has left the jurisdiction does not jeopardize the hearing of the appeal and a disposition of the cause by the appellate court. The justification and reasons for the rule that the escape of a defendant puts him in jeopardy of dismissal of his appeal was well set forth by Mr. Chief Justice Waite in 1876 and approved by our Supreme Court in State v. Handy, 27 Wash. 469, 67 P. 1094 (1902). The theory is that the courts will not give their time to proceedings which, for their effectiveness, must depend upon the person charged with the crime. Our court then promulgated this special rule dealing with the narrow situation dealing with the escape of a defendant when his cause is on appeal. When the defendant, however, is present and ready to proceed to trial before the appeal has been dismissed the Waite rationale is not served by imposing the rule.
I, therefore, would hold that when a defendant escapes he is jeopardizing his appeal but his escape does not end the appeal without an opportunity for him to reappear. The *648reasons articulated by Mr. Chief Justice Waite for the rule are still the only valid reasons that an appeal should be dismissed. Further, the rule of lenity, while traditionally a rule of criminal statutory construction, should be held applicable to a situation, such as here, where absent binding precedent the court may choose whether to allow to stand a duplicative and harsh penalty for conduct punishable by less severe and more appropriate measures. Simpson v. United States, 435 U.S. 6, 55 L. Ed. 2d 70, 98 S. Ct. 909 (1978); State v. Workman, 90 Wn.2d 443, 454, 584 P.2d 382 (1978).
Proper procedure requires that when a defendant escapes from custody before an order is entered dismissing his pending appeal there must be a mandate from the court having jurisdiction directing the dismissal of the appeal to take effect on a day certain unless in the meantime the appellant returns to custody. The criminal statutes provide ample means to penalize a defendant for absconding. RCW 9A.76.120-.130.
I would therefore reverse and remand for reinstatement of the appeal and a de novo trial.
Reconsideration denied August 16, 1979.