July 24th. The Kansas Supreme Court has issued its decision in State v. Raiburn (No. 95,908), concerning the Common Law concept of fugitive disentitlement. In a unanimous opinion, written by Justice Eric Rosen, the Court held that an appellate court can dismiss an appeal by someone who absconds while it is pending. In this particular case, the matter was remanded for a hearing in District Court to confirm that the appellant was in fact a fugitive.
Steven Raiburn was convicted of possession of marijuana and sentenced to a suspended sentence of 20 months in gaol and 18 months probation. He filed an appeal within the statutory time limits. Then he did not report for probation. The State moved to have his probation revoked.
When his appeal came up to be heard, the State moved to have it dismissed under the Common Law fugitive disentitlement doctrine which means that someone who flees during their appeal will have it dismissed regardless of the merits of their claim. The Court of Appeals agreed and dismissed the appeal. Raiburn appealed to the Kansas Supreme Court.
In a short opinion the Kansas Supreme Court reviewed Kansas, Federal and other State precedent on the matter of this doctrine. It concluded that the doctrine, though it crops up rarely, is still operative. Therefore the Court of Appeals does have the power to dismiss a case for this reason. The basic rationale for it is that the fugitive has removed himself from the Appellate Court’s jurisdiction: if he loses, he presumably will not turn himself in. If he wins, he may well not show up for a new trial.
However, in this case the Court found that nowhere had Raiburn been found to actually be a fugitive. The State had asserted it, Raiburn had not been present at the Court of Appeals and his advocate would not comment on his whereabouts but as a matter of law he had not been held to have breached his probation. Therefore the Court ruled that in such cases if the Appellate Court finds that it could apply the fugitive disentitlement doctrine it must remand the case to District Court for a finding, based on the preponderance of the evidence, as to whether the appellant is fugitive. It also held that an Appellate Court can choose not to dismiss an appeal under this doctrine in the same way as it may opt not to apply other general rules.
The case was therefore remanded to the Court of Appeals, to remand it to the District Court for a finding of fact as to whether Raiburn is a fugitive.