DILLARD, C. J., RAY, P. J. and SELF, J.
Worthen appeals from his convictions for insurance fraud, two
counts of theft by deception, making a false statement, and
false report of a crime. In related enumerations of error,
Worthen complains about various waivers of his rights that
occurred after he absconded during the middle of his trial.
He also argues that he is entitled to a new trial based upon
the absence of a complete trial transcript. For the reasons
explained below, we disagree and affirm.
record shows that Worthen's trial began on March 31,
2015, with a senior judge presiding. On the fourth day of
trial, Worthen failed to return to court, and the trial court
issued a bench warrant for his arrest. The trial continued in
his absence, and the jury found him guilty of all charges. On
April 6, 2015, the senior judge sentenced Worthen to serve a
total of 27 years. On April 10, 2015, Worthen's trial
counsel filed a motion for new trial asserting the general
grounds, along with a request for a trial transcript on the
grounds that Worthen was indigent and represented by the
Clayton County Public Defender's Office.
April 14, 2015, a different judge signed an order prepared by
Worthen's counsel which granted his request for a
transcript at public expense. The first sentence of the order
incorrectly stated that Worthen "continues to be
indigent and incarcerated after being sentenced by
this Court on April 6, 2015, " when in fact Worthen
"remained an unapprehended fugitive until May 1, 2016 -
more than a year following his conviction." (Emphasis
supplied.) After learning that Worthen had absconded during a
trial over which the senior judge had presided, the judge set
aside her order granting a transcript and denied a subsequent
request by Worthen for a free transcript.
25, 2016, the trial court held a status conference in which
counsel for both parties and Worthen were present. In this
conference, the trial court "informed the parties that
it appeared that the Defendant's Motion for New Trial was
subject to dismissal due to its having been filed while the
Defendant was a fugitive." After giving Worthen an
opportunity to file briefs on the issue, the trial court
dismissed the April 10, 2015 motion for new trial based upon
Worthen's absence. Worthen then filed a timely notice of
appeal from this order.
Worthen contends that there was no valid waiver of his right
to be present at sentencing, arguing that the State failed to
prove a "valid, intelligent and knowing waiver." In
Worthen's view, the State must prove that he knew he was
waiving his right to be present at sentencing if he absented
himself from the trial. We disagree. It is well-established
that if a trial has begun in the defendant's presence and
he voluntarily absents himself, "this does not nullify
what has been done or prevent the completion of the trial,
but, on the contrary, operates as a waiver of his right to be
present and leaves the court free to proceed with the trial
in like manner and with like effect as if he were
present." (Citation and punctuation omitted.) Taylor
v. United States, 414 U.S. 17, 19 (94 S.Ct. 194, 38
L.Ed.2d 174) (1973). See also Byrd v. Rickets, 233
Ga. 779, 780 (213 S.E.2d 610) (1975) (finding no violation of
right to be present where defendant "voluntarily absents
himself from the trial").
related enumerations of error, Worthen claims that his trial
counsel was authorized to file a timely motion for new trial
during his absence, that there was no valid waiver of his
post-conviction rights, that the trial court's failure to
consider the merits of his motion for new trial violated his
due process rights under the state and federal constitutions,
and that his motion for new trial was not subject to
dismissal because he was back in custody by the time the
trial court dismissed it. As the State correctly asserts in
its brief, long-standing authority precludes these claims.
known as the "fugitive disentitlement doctrine,
" this equitable doctrine limits access to
courts by fugitives from justice. Fed. Deposit Ins. Corp.
v. Pharaon, 178 F.3d 1159, 1161 (II) (11th Cir. 1999).
"Aside from the difficulty of enforcing a judgment
against a fugitive, other rationales underlying the doctrine
include promoting the efficient operation of the courts,
discouraging flights from justice, and avoiding prejudice to
the other side caused by the appellant's fugitive
status." Pesin v. Rodriguez, 244 F.3d 1250,
1253 (11th Cir. 2001). See also Harper v. State, 300
Ga.App. 25, 28 (684 S.E.2d 96) (2009).
Harper, supra, we addressed nearly identical facts
and claims. The defendant in that case became a fugitive
during his trial, the trial court issued a bench warrant for
his arrest, the trial proceeded without him, and he was
sentenced in absentia. 300 Ga.App. at 26. His trial counsel
filed a timely motion for new trial in his absence in an
attempt to preserve his right to a direct appeal.
Id. at 26-27. After the State filed a motion to
dismiss the motion for new trial and before the trial court
ruled upon it, the defendant was captured. Id. A few
days later, the trial court dismissed the motion for new
trial. Id. at 27.
affirmed, explaining: "Georgia law is clear . . . that
where a defendant becomes a fugitive before filing any
post-conviction motions and then remains a fugitive during
the time in which he could assert such a motion, he waives
his right to seek post-conviction relief." (Citations,
punctuation and footnotes omitted.) Id. And,
"[a]s the Supreme Court of Georgia explained over a
century ago, 'a fugitive defendant does not have a right
to appear by counsel until he has returned into
custody.'" (Citations, punctuation and footnotes
omitted.) Id. at 28. Additionally, no due process
violations are implicated in dismissals under this doctrine.
See Goeke v. Branch, 514 U.S. 115, 118-119 (115
S.Ct. 1275, 131 L.Ed.2d 152) (1995); Allen v.
Georgia, 166 U.S. 138 (17 S.Ct. 525, 41 L.Ed.2d 949)
(1897); Brown Ricketts, 235 Ga. 29 (218 S.E.2d 785)
(1975). Finally, the fact that Worthen was captured before
the trial court dismissed the motion for new trial filed by
his attorney does not preclude its application. As we held in
Harper, supra, Worthen waived his right to seek a
new trial "[b]ecause [he] remained a fugitive during the
entire time in which he could have filed a motion for new
trial." 300 Ga.App. at 28.
Worthen argues that the General Assembly's 1980 enactment
of a statute making bail-jumping a crime, OCGA §
16-10-51, means "the prior judicially-created penalty is
no longer available." We disagree.
well-established "that, to the extent that statutory
text can be as reasonably understood to conform to the common
law as depart from it, the courts usually presume that the
legislature meant to adhere to the common law."
(Citation and punctuation omitted.) Fed. Deposit Ins.
Corp. v. Loudermilk, 295 Ga. 579, 591 (2) (761 S.E.2d
332) (2014). As nothing in the plain language of the statute
criminalizing bail-jumping can be viewed as superseding the
equitable common law doctrine of fugitive disentitlement and
no inconsistencies exist between the common law and the
statute, Worthen's argument has no merit. Id. at
593 (2) (common law consistent with and not superseded by
statute); Culpepper v. Veal, 246 Ga. 563, 564 (272
S.E.2d 253) (1980) (rejecting argument that statute
superseded common law).
argument that as a penal statute, OCGA § 16-10-51 should
be construed in his favor misses its mark. The rule of lenity
requires a court to interpret an ambiguous criminal
statute in favor of the defendant. See Banta v.
State, 281 Ga. 615, 617-618 (2) (642 S.E.2d 51) (2007)
("rule of lenity . . . applies only when, after
consulting traditional canons of statutory construction, we
are left with an ambiguous ...