United States v. Mark Joseph Holmes, 680 F.2d 1372 (11th Cir. 1982). · Go Syfert
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United States v. Mark Joseph Holmes, 680 F.2d 1372 (11th Cir. 1982). Cases Citing This Book View Copy Cite
87 citation events (2 in the last 25 years) across 29 distinct courts.
Strongest positive: State v. Fisher (nj, 1998-12-23) · Strongest negative: United States v. Danny J. Parrish, A/K/A James Spriggs (cadc, 1989-10-31)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited "but see" United States v. Danny J. Parrish, A/K/A James Spriggs (2×) also: Cited "see"
D.C. Cir. · 1989 · signal: but see · confidence high
But see United States v. Persico, 853 F.2d 134 (2d Cir.1988) (Molinaro principle applies) and United States v. Holmes, 680 F.2d 1372 (11th Cir.1982) (per curiam) (same), cert. denied, 460 U.S. 1015 , 103 S.Ct. 1259 , 75 L.Ed.2d 486 (1983).
cited Cited as authority (rule) State v. Fisher
N.J. · 1998 · confidence medium
Ed.2d 581, 588 (1993) (quoting United States v. Holmes, 680 F.2d 1372, 1373 (1982), cert. denied, 460 U.S. 1015 , 103 S.Ct. 1259 , 75 L.
discussed Cited as authority (rule) United States v. Lamthong Sudthisa-Ard
9th Cir. · 1994 · confidence medium
See, e.g., United States v. Matista, 932 F.2d 1055, 1056-58 (2d Cir.1991); United States v. Alvarez, 868 F.2d 547, 548 (2d Cir.1989); United States v. Persico, 853 F.2d 134, 136-38 (2d Cir.1988); United States v. DeValle, 894 F.2d 133, 135-37 (5th Cir.1990); United States v. London, 723 F.2d 1538, 1539 (11th Cir.), cert. denied, 467 U.S. 1228 , 104 S.Ct. 2684 , 81 L.Ed.2d 878 (1984); United States v. Holmes, 680 F.2d 1372, 1373-74 (11th Cir.1982), cert. denied, 460 U.S. 1015 , 103 S.Ct. 1259 , 75 L.Ed.2d 486 (1983); United States v. Parrish, 887 F.2d 1107, 1107-09 (D.C.Cir.1989).
examined Cited as authority (rule) Ortega-Rodriguez v. United States (10×) also: Cited "see"
SCOTUS · 1993 · confidence medium
In United States v. Holmes, 680 F. 2d 1372, 1373 (1982), cert. denied, 460 U. S. 1015 (1983), the Court of Appeals for the Eleventh Circuit held that "a defendant who flees after conviction, but before sentencing, waives his right to appeal from the conviction unless he can establish that his absence was due to matters completely beyond his control." Relying on that authority, and without further explanation, the court dismissed petitioner's appeal. [1] Because we have not previously *236 considered whether a defendant may be deemed to forfeit his right to appeal by fleeing while his case is p…
discussed Cited as authority (rule) West v. United States
D.C. · 1992 · confidence medium
However, a statutory right to appeal may be waived by untimely notice pursuant to procedural rules or “by abandonment through flight.” United States v. Holmes, 680 F.2d 1372, 1374 (8th Cir.1982), cert. denied, 460 U.S. 1015 , 103 S.Ct. 1259 , 75 L.Ed.2d 486 (1983).
cited Cited as authority (rule) Citronelle-Mobile Gathering, Inc. v. James D. Watkins
11th Cir. · 1991 · confidence medium
United States v. Holmes, 680 F.2d 1372, 1373 (11th Cir.1982).
cited Cited as authority (rule) Citronelle-Mobile Gathering, Inc. v. Watkins
11th Cir. · 1991 · confidence medium
United States v. Holmes, 680 F.2d 1372, 1373 (11th Cir.1982).
cited Cited as authority (rule) State v. Smith
Mo. Ct. App. · 1991 · confidence medium
Wright, supra, 763 S.W.2d at 168 ; U.S. v. Holmes, 680 F.2d 1372, 1374 (11th Cir. 1982).
discussed Cited as authority (rule) United States v. Jose Matista
2d Cir. · 1991 · confidence medium
See United States v. DeValle, 894 F.2d 133, 136 (5th Cir.1990) (appeal of conviction dismissed based upon fugitive status for approximately eight months); United States v. Puzzanghera, 820 F.2d 25, 26 (1st Cir.) (absence of thirty days deemed "minimally sufficient"), cert. denied, 484 U.S. 900 , 108 S.Ct. 237 , 98 L.Ed.2d 195 (1987); United States v. Holmes, 680 F.2d 1372, 1373 (11th Cir.1982) (per curiam) (appeal dismissed where defendant absconded for two years before his return to custody), cert. denied, 460 U.S. 1015 , 103 S.Ct. 1259 , 75 L.Ed.2d 486 (1983); but see United States v. Snow, …
discussed Cited as authority (rule) United States v. Eric Michael Wright (2×) also: Cited "see, e.g."
3rd Cir. · 1990 · signal: contra · confidence medium
Although some courts of appeals have dismissed appeals in similar circumstances conditionally, subject to reinstatement if petitioner surrenders or is apprehended within a specified time, see, e.g., United States v. Shelton, 508 F.2d 797 (5th Cir.), cert. denied, 423 U.S. 828 , 96 S.Ct. 45 , 46 L.Ed.2d 44 (1975); United States v. Eberhardt, 467 F.2d 578 (5th Cir.1972); contra Holmes, 680 F.2d at 1372 (dismissing the appeal with prejudice, barring the escapee from ever bringing an appeal), that has not been our practice and we will not depart from our precedent today.
discussed Cited as authority (rule) United States v. Sharpe (2×)
SCOTUS · 1985 · confidence medium
Cf. Florida v. Meyers, 466 U. S. 380, 385 (1984) (per curiam) (STEVENS, J., dissenting) (the Court "should focus [its] attention on methods of using [its] scarce resources wisely rather than laying another course of bricks in the building of a federal judicial bureaucracy"). [3] See, e. g., Florida v. Rodriguez, 469 U. S. 1, 2-3 (1984) (per curiam) ; United States v. Holmes, 680 F. 2d 1372, 1373 (CA11 1982), cert. denied, 460 U. S. 1015 (1983); United States v. Wood, 550 F. 2d 435, 437-438 (CA9 1976); United States v. Sperling, 506 F. 2d 1323, 1345, n. 33 (CA2 1974), cert. denied, 420 U. S. 96…
cited Cited as authority (rule) Carl Hall v. State of Alabama
11th Cir. · 1983 · confidence medium
Id. at 1373.
cited Cited "see" Gurican v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Holmes, 680 F.2d at 1374 .
cited Cited "see" United States v. Alphonse Persico
2d Cir. · 1988 · signal: see · confidence high
See United States v. Holmes, 680 F.2d 1372, 1373 (11th Cir.1982) (per curiam), cert. denied, 460 U.S. 1015 , 103 S.Ct. 1259 , 75 L.Ed.2d 486 (1983).
discussed Cited "see, e.g." Bellows v. State
Nev. · 1994 · signal: see also · confidence medium
United States v. Persico, 853 F.2d 134, 137 (2nd Cir. 1988); see also United States v. Holmes, 680 F.2d 1372, 1374 (11th Cir. 1982), cert. denied, 460 U.S. 1015 (1983); State v. Gurican, 576 So.2d 709, 712 (Fla. 1991).
cited Cited "see, e.g." Robinson v. State
Mo. · 1993 · signal: see, e.g. · confidence low
See, e.g., United States v. Holmes, 680 F.2d 1372 (11th Cir.1982).
discussed Cited "see, e.g." United States v. Collins
S.D. Fla. · 1987 · signal: see also · confidence medium
Hall v. Alabama, 700 F.2d 1333, 1337 (11th Cir.) (escape from state custody constituted procedural waiver of right to seek relief from state court from underlying conviction, thus precluding exhaustion of state remedies and foreclosing right to federal habeas review), cert. denied, 464 U.S. 859 , 104 S.Ct. 183 , 78 L.Ed.2d 163 (1983); see also United States v. Holmes, 680 F.2d 1372, 1373 (11th Cir.1982) (per curiam) (defendant who flees after conviction but before sentencing waives or abandons right to appeal from that conviction unless he establishes that absence was due to matters completely…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Mark Joseph HOLMES, Defendant-Appellant
81-7307.
Court of Appeals for the Eleventh Circuit.
Jul 22, 1982.
680 F.2d 1372
John William Hammond, Marietta, Ga. (Court Appointed), for defendant-appellant., James E. Baker, U. S. Atty., Julie Carnes, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Clark, Hill, Per Curiam, Scott.
Cited by 47 opinions  |  Published
PER CURIAM:

Mark Joseph Holmes was convicted by a jury in the United States District Court for the Northern District of Georgia on February 15, 1979, for violations of federal narcotics laws. On February 26, 1979, Holmes entered a guilty plea on a charge of possession of a firearm by a convicted felon. The district court set March 29, 1979, as the sentencing date for both charges. Holmes failed to appear on March 29 for the sentencing, however, and the district court issued a bench warrant for his arrest and declared Holmes’ bail bond to be forfeited.

Holmes remained a fugitive until March 6, 1981, at which time law enforcement officers arrested Holmes in Buffalo, New York, and removed him to the Northern District of Georgia. On March 31,1981, the district court sentenced Holmes to a total of seventeen years imprisonment. Holmes then brought this appeal from his convie-tions on all counts. The government filed a motion before this court to dismiss the appeal on the ground that Holmes abandoned any appeal by becoming a fugitive for some two years after his convictions. On May 26, 1981, this court ordered that the government’s motion to dismiss be carried with the case. The case was argued before this panel on June 29,1982, with counsel addressing both the motion to dismiss and the issues raised by Holmes on appeal.

In support of its motion to dismiss, the government relies upon the following cases in which criminal appeals were dismissed because the defendant became a fugitive after filing a notice of appeal: Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Estelle v. Donough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975); Estrada v. United States, 585 F.2d 742 (5th Cir. 1978); United States v. Smith, 544 F.2d 832 (5th Cir. 1977); and United States v. Shelton, 508 F.2d 797 (5th Cir. 1975). The cases cited are distinguishable from the instant case because each involved a defendant who fled after filing a notice of appeal. In this case, on the other hand, Holmes fled after conviction but before sentencing and, thus, before filing a notice of appeal. The government contends, however, that the policy considerations underlying the dismissals in the cited cases justify dismissal in this ease as well.

We hold that a defendant who flees after conviction, but before sentencing, waives his right to appeal from the conviction unless he can establish that his absence was due to matters completely beyond his control. Such a defendant does not waive his right to appeal from any alleged errors connected to his sentencing.

The right of appeal is purely a creature of statute, 28 U.S.C. § 1291, and is not guaranteed by the Constitution. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct.[*1374] 2034, 2038, 52 L.Ed.2d 651 (1977). It may be waived by not filing a timely notice as required by the Federal Rules of Appellate Procedure or by abandonment through flight which may postpone filing a notice of appeal for years after conviction. Such untimeliness would make a meaningful appeal impossible in many cases. In case of a reversal, the government would obviously be prejudiced in locating witnesses and retrying the case.

The Supreme Court stated in Molinaro, supra:

No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.

396 U.S. at 366, 90 S.Ct. at 498-99. This reasoning is equally forceful whether the defendant flees before or after sentencing. Were we to hold otherwise, criminal defendants who flee prior to sentencing would be permitted upon apprehension to seek relief from the very legal system that they previously had seen fit only to defy. Such a result would fly in the face of common sense and sound reason. We hold that Holmes, by becoming a fugitive following his convictions, abandoned his right to pursue this appeal. Accordingly, the government’s motion to dismiss the appeal is granted.

APPEAL DISMISSED.