Yates v. Brown

Hill, Justice,

concurring specially.

I would affirm the order of the habeas court for the reason stated in my special concurrence in Brown v. Ricketts, 235 Ga. 29, supra. In my view a person who escapes following conviction loses his right to pursue his appeal as well as his right to appointed counsel and a free trial transcript. This loss should not be dependent on whether or not he has been recaptured prior to the dismissal of the appeal.

An indigent convicted of a crime has the right to a transcript of his trial, has the right to the services of an appointed attorney, has the right to have the trial court consider his motion for new trial and has the right to have an appellate court consider his appeal. I would hold that in order to be entitled to exercise these rights, the prisoner must refrain from escaping while the state is preserving and protecting his rights of appeal. Brown v. Ricketts, supra.

As was said concerning escape in Madden v. State, 70 Ga. 383, supra, p. 384: "Their act, is an open defiance of the law, and thereby they have deprived themselves of all legal right further to prosecute this writ of error.” It is true that in Madden the court held the case until the end of the term to see if the defendant surrendered. In my view, this undeserved consideration by that court, which commenced there as a practice, has subsequently been *394adopted as a rule that if the petitioner returns then his appeal will be heard.

As I see it, the majority opinion actually supports the views expressed here. It was determined by the Superior Court of Putnam County that petitioner was entitled to an out-of-time appeal. Petitioner escaped. His appeal was dismissed. He was returned to custody. Why is he now deprived of an out-of-time appeal? Because he escaped while his right of appeal was in process. Yet he is in custody now. There is no bar to an out-of-time appeal now, except for that escape.

I can sympathize with frustrated appointed counsel preparing amendments to motions for new trial and preparing briefs for appellate courts, knowing that the defendant has escaped but might be returned to custody on or before the filing date. Thus, the preparation must go on, even during the escape, for to be unprepared on the filing date could bring forth that allegation "ineffective assistance of counsel” which is dreaded by all lawyers.

Following the lead of the Supreme Court of the United States in Estelle v. Dorrough, —U. S.— (95 SC 1173, 1174, 45 LE2d 377) (1975), see Brown v. Ricketts, supra, I would hold that, except to prevent a manifest miscarriage of justice, an escape at any time following conviction disentitles the defendant to call upon the resources of the trial and appellate courts (including the services of appointed counsel) for determination of his claims of error as to that conviction and any appeal therefrom.