
    Commonwealth vs. Ralph P. Richards.
    October 9, 1980.
    
      Daniel E. Callahan for the defendant. Robert M. Payton, Assistant District Attorney, for the Commonwealth.
   This case is before us on the defendant’s motion for reconsideration of an order by which his appeal from a conviction of murder in the second degree was dismissed. The reason for the dismissal was that the defendant, after the argument of his appeal but before disposition thereof, had failed to return to prison following a furlough. See Commonwealth v. Rezendes, 353 Mass. 228 (1967). The Commonwealth’s motion for dismissal of the appeal was allowed by an order in the form of a rescript opinion dated May 7, 1973. See Commonwealth v. Richards, 1 Mass. App. Ct. 821 (1973). That rescript was recalled, however, on May 31, 1973, and on the same date another rescript opinion issued which again ordered the appeal dismissed. The defendant, meanwhile, had been returned to custody on May 8, 1973. In these circumstances we think that the order of dismissal should be rescinded. It is true that “one who is in escape from custody cannot insist that his appeal be heard,” Commonwealth v. Green, 353 Mass. 687, 690 (1968); and if the appeal of an escaped prisoner is dismissed for that reason in his absence, we think that, under the rule of the Rezendes case, his appellate rights are lost. But where an escaped prisoner returns to custody, voluntarily or involuntarily, before such a dismissal takes place, the basis for the dismissal, namely, the “unavailability of the prisoner] to await the decision of the court,” Commonwealth v. Rezendes, at 228, no longer obtains. We think that is the controlling principle in this case. Our recall of the May 7, 1973, rescript left the Commonwealth’s motion to dismiss the appeal undisposed of, and the return of the defendant to custody preceded our allowance of the motion on May 31, 1973. The defendant’s motion for reconsideration of the order of dismissal is therefore allowed, the dismissal of the appeal is vacated, and the appeal is restored to the docket.

So ordered.  