concurring specially.
Rather than basing this decision upon the particular date of escape and the particular date of action to be taken by appointed counsel, I would adopt a broader rule.
In Estelle v. Dorrough, - U. S. - (95 SC 1173, 1175, 45 LE2d 377) (1975), the United States Supreme Court recently stated: ”... there is no federal constitutional right to state appellate review of state criminal convictions. [Cits.] Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law. [Cit.] This court itself has long followed the practice of declining to review the convictions of escaped criminal defendants. [Cits.] Thus in Molinaro v. New Jersey, 396 U. S. 365 (90 SC 498, 24 LE2d 586) (1970), we dismissed the appeal of an escaped criminal defendant, stating that no persuasive reason exists to adjudicate the merits of such a case and that an escape 'disentitles the defendant to call upon the resources of the Court for determination of his claims.’ Id., at 366, 90 SC at 499. In Allen v. Georgia, 166 U. S. 138 (17 SC 525, 41 LE 949) (1897), we upheld as against a constitutional due process attack a state court’s dismissal of the appeal of an escaped prisoner and its refusal to reinstate the appeal upon his later recapture.”
In Estelle, supra, one of the equal protection arguments considered and rejected by the majority was that under the Texas statute there in issue, a prisoner who escaped before invoking the appellate process could appeal after recapture if the prescribed time for filing the appeal had not expired, whereas a prisoner who escaped after invoking the appellate process was denied the right of áppeal. The "under inclusive” aspect of the Texas statute was found not to be violative of the equal protection clause.
Although the decision of the majority in this case is not subject to attack upon equal protection grounds, Estelle, supra, the holding nevertheless is "under *32inclusive” in my view. The rights of escapees and the effectiveness of counsel should not vary depending upon the dates of escape and recapture vis-a-vis the dates for filing motions for new trial, amendments thereto, notices of appeal, and enumerations of error. I therefore 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.
I am authorized to state that Chief Justice Nichols joins in this special concurrence.