         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 2, 2001

               STATE OF TENNESSEE v. DARRELL J. DUFRENE

                   Direct Appeal from the Circuit Court for Hardin County
                           No. 7963    C. Creed McGinley, Judge


                   No. W2000-03129-CCA-R3-CD - Filed December 7, 2001


The defendant, Darrell J. Dufrene, entered a plea of guilt to one count of theft over $1,000.00 but
less than $10,000.00, a Class D felony. Pursuant to a plea agreement, the trial court set the
defendant's sentence at three years and scheduled an alternative sentencing hearing. The defendant
failed to appear at the hearing and the trial court ordered a term of incarceration. In this appeal of
right, the defendant asserts that the trial court erred by failing to order either probation or community
corrections. Because, however, the defendant remains on escape status, the appeal is dismissed.

                              Tenn. R. App. P. 3; Appeal Dismissed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ROBERT
W. WEDEMEYER , JJ., joined.

Richard W. DeBerry, Assistant District Public Defender, for the appellant, Darrell J. Dufrene.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and
John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

       On either March 20 or March 21, 2000, the defendant entered the residence of Mildred White
in Savannah and stole a rifle valued in excess of $1,000.00. A grand jury indicted the defendant for
aggravated burglary and theft over $1,000.00 but less than $10,000.00. As part of the plea
agreement, the state dismissed the charge of aggravated burglary. The Board of Probation and Parole
conducted a presentence investigation prior to the sentencing hearing.

        Although his counsel was present, the defendant, who was on bail, did not appear on the date
scheduled for the alternative sentencing hearing. The trial court overruled defense counsel's motion
for a continuance, entered a conditional forfeiture of the defendant's bond, and conducted a hearing.
Although the state offered no proof aside from the presentence investigation, the trial court imposed
a sentence of incarceration, determining from the presentence report that the defendant had a prior
criminal record of misdemeanors and finding that the defendant had forfeited bail sometime earlier
in Louisiana on an unrelated charge. The trial court also issued a capias for the defendant's arrest.
According to court records, he is still at large.

        In this appeal, the defendant argues that the trial court should have granted either probation
or a community corrections sentence. The record reflects, however, that the defendant "currently has
an outstanding capias." In Tennessee, a defendant who escapes waives his right to direct appeal
unless he is in custody at the time his appeal is considered. Bradford v. State, 184 Tenn. 694, 202
S.W.2d 647 (1947); Knight v. State, 190 Tenn. 326, 229 S.W.2d 501 (1950); Campbell v. State, 576
S.W.2d 591 (Tenn. Crim. App. 1978). Because the defendant has been on escape status since the
inception of this appeal and remains at large, he has forfeited direct review of his sentence by this
court.

       Accordingly, the appeal is dismissed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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