### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 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, entere d a plea of guilt to one count of theft over $1 ,00 0.00 but less than $10,000.00, a Class D felony. Pursua nt to a plea agreement , the trial cou rt set the defend ant's sentence at three y ears and scheduled an alternative sente ncing h earing. The defendant failed to appear at the hearing and the trial court ordered a term of incarceration. I n this appeal of right, the defendant asserts that the trial court erred b y f ailing to order e ither pro bation or community corrections. Because, howeve r, the defendant remains on escape status, the a ppeal is dismissed. Tenn. R. App. P. 3; Appeal Dismissed G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined. Richard W. DeBerry , Assistant District Public Defender, for the appellant, Darre ll J. Dufrene. Paul G. Summers, Attorney Gene ral & Reporter; John H. Bledsoe, Assistant Attorney Gene ral; and John W. Overton, Jr., Assistant District Attorney General, for the appe llee, State of Tennessee. OPINION On either March 20 or March 21, 2000, the defe ndant entered the residence of Mild red 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 $10,000.0 0. A s part of the plea agree ment, the state dism issed the ch arge of agg ravate d burgla

ry . The Bo ard of Pr

obation a nd Parole condu cted a p resent ence in vesti gation prior to th e sent encin g hearin g. Alth ough his counsel was present, thedefenda nt, who wa s on bail, d

id not appea

r on the da

te scheduledfor

the alternative sentencing hearing . The trial court overruled defense counsel' s motion for a cont inuan ce, ent ered a co ndit ional forfei ture o f the d efenda nt's bond, and conducted a hearin g. Alth ough the state offered no proof aside from the presentence investiga tion, the trial court imposed a sentence of incarceration, determining fr om the presentence report that the defenda nthad a prior-2-

criminal record of misdemeanors and finding that the defendant had forfeited bail sometime earlier in Louisiana

on an unrelated charge. The trial court al so issued a

capias f or the defendant 's arr

est. According to court records, he is still at larg e. In this appe al, the defe

ndant ar gues tha t the tria l court sh ould

have granted either probation or a community c orrect

ions sente nce. The record reflec ts, however , that the defenda nt "cur rently has an outstandi ng cap ias." I n Tennes see, a de

fendant who esca

pes waiv es his rig

ht to direct ap peal unless he is in custody at the time his appeal is considered. Bradf ord v. Stat

e , 184 Tenn. 694, 202 S.W.2d 647 (1947 ); Knight v . State , 190 Tenn . 326, 229 S. W.2d 501 (1 950); Campbell v. State , 576 S.W.2d 591 (Tenn. Crim. App. 1978). Because the defenda nt 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