concurring in part and dissenting in part:
I concur in affirming the conviction in this case. However, I respectfully dissent from the majority’s position holding it was not error for the trial court to allow Brown’s absence from his sentencing trial. Although I agree with the general proposition that defendants may waive many of their constitutional rights, the issue in this case is whether the trial judge should have allowed this defendant to do so. Under the circumstances here, I do not think Brown should have been allowed to absent himself from the second stage proceedings.
Title 22 O.S.1981, § 588 provides:
If the indictment or information is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant^] (emphasis added).
The statute’s language clearly states that a defendant’s presence at trial is mandatory. Title 22 O.S.1981, § 912 further provides that the defendant must appear in person before the verdict is received.
Nevertheless, this Court has allowed trials to continue in the absence of the defendant when the defendant either disrupted the proceedings 1 or was voluntarily absent during the proceedings. See, Royal v. State, 761 P.2d 497 (Okl.Cr.1988) (defendant who failed to return after three-day weekend waived right to be present and could not rely on statute’s mandatory language, as statute was reenacted after court’s decisions allowing exceptions to the mandatory presence rule, indicating intent of legislature to adopt the exceptions); Clark v. State, 718 P.2d 375, 377 (Okl.Cr.1986) (not error to conduct portions of trial in absence of defendant who was permitted to leave because she believed people would laugh at her); Love v. State, 675 P.2d 466 (Okl.Cr.1984) (not error for court to continue proceedings in defendant’s absence where defendant failed to reappear after noon recess of first day of trial); Sonnier v. State, 597 P.2d 771, 773 (Okl.Cr.1979) (not error to deny motion for continuance and continue with proceedings where defendant failed to appear); Delancy v. State, 596 P.2d 897 (Okl.Cr.1979) (not error to proceed without defendant’s presence from 11:00 a.m. until noon recess where defendant failed to appear because he was with his wife who was hospitalized in maternity ward); Clonce v. State, 588 P.2d 584, 589 (Okl.Cr.1979) (not error to conduct second stage without defendant’s presence where defendant failed to appear following the first stage of trial); Ware v. State, 556 P.2d 1073, 1075 (Okl.Cr.1976) (not error to conduct second stage in absence of defendants who did not return for the proceedings and where there was no reason given for their absence); Warren v. State, 537 P.2d 443 (Okl.Cr.1975) (not error to continue trial in absence of defendant who did not appear after first day of trial); Roberts v. State, 523 P.2d 1150 (Okl.Cr.1974) (not error to conduct proceedings in defendant’s absence where defendant faded to return after a noon recess, and did not return for three days).
I would limit the “voluntary absent” exception to situations where the defendant actually disappeared or escaped custody and was no longer physically present.2 My concern here is that Brown was present and could have been brought into the courtroom, even forcefully if necessary. Only if Brown seriously threatened to create a disturbance or actually did create a disturbance should he then have been removed from the courtroom. Moreover, Brown’s reasons for wanting to be absent from his sentencing trial were weak. Brown simply did not want to attend his sentencing hearing because he did not feel the first stage proceedings were “done right” and because he did not want to hear his *79children testify. Brown was understandably distressed after hearing the jury’s first stage verdict, but this was not sufficient reason to allow him to waive a right as important as attending his own trial. The state also has an interest in having the defendant present at trial and in this ease the state objected to Brown’s removal. Furthermore, a defendant’s presence at trial is required not only by statute and not only for the defendant’s protection, but to maintain the integrity of the system as a whole. When citizens are tried for crimes in their absence, the public’s faith in our system of justice is undermined.
Although I agree that in some cases it is necessary to continue with the proceedings in the absence of the defendant, the “voluntary absence” exception as applied by this court is far too lax. “One step further could simplify the trial even more, i.e., submit the accused person to trial prior to his apprehension in true ‘absentia’ form.” Warren v. State, supra, 537 P.2d at 448, (Brett, P.J. dissenting). I would limit this exception to cases where the defendant has escaped or absconded and is no longer present in person.3 Because Brown was available and could have been brought into the courtroom, the trial court erred in allowing his absence. Therefore, I would reverse the sentence and remand this ease for resentencing.
. This exception is not applicable to Brown’s case. Although the majority disagrees, my reading of the transcript indicates Brown finally stated he would not disrupt the proceedings if compelled to attend.
. This is the situation in the majority of the "voluntarily absent” cases cited above. Clark, supra, is the only case to date which upheld the trial court’s allowance of a defendant to be absent simply because she did not want to be present, as opposed to because she had absconded and could not be located. Clark takes the "voluntarily absent" exception too far and should be overruled.
. In situations where physical illness precludes the defendant from attending his or her trial, the court should grant a continuance.