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Ex parte Estate of Cook7/3/2002
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
The estate of Matthew Ryan Cook (hereinafter referred to as "the Estate") petitioned this Court for a writ of certiorari. We granted the Estate's petition to consider an issue of first impression in this State -- what is the effect of a defendant's death upon a defendant's conviction for a crime when the death occurs while the defendant is challenging that conviction by an appeal taken as a matter of right? We conclude that the conviction abates from its inception, and we remand the cause.
On November 17, 1998, Matthew Ryan Cook was convicted in the Gadsden Municipal Court (hereinafter referred to as "the municipal court") of the offense of driving under the influence . On December 8, 1998, Cook filed a notice of appeal to the Etowah County Circuit Court (hereinafter referred to as "the circuit court") for a trial de novo. On September 17, 1999, the circuit court entered the following order on its case action summary:
"This case having been tried and submitted to a jury but the jury unable to reach a unanimous verdict, a mistrial is hereby declared and the case returned to the next criminal appeals jury docket."
On January 16, 2001, before a second trial was conducted, counsel for Cook filed a suggestion of death and a motion to continue the trial. On that same day, the circuit court granted the motion to continue. On March 13, 2001, the City of Gadsden (hereinafter referred to as "the City") filed a motion seeking a dismissal of Cook's appeal to the circuit court and a remand of the case to the municipal court, and counsel for Cook filed a motion to dismiss the City's prosecution of the driving-under-the-influence claim, arguing, in part, that Cook's death constituted an abatement of his prosecution and that the conviction in the municipal court was a nullity. On that same day, the circuit court entered an order stating that Cook's death terminated his appeal to that court and that the Estate could not pursue an appeal, and it remanded the cause to the municipal court.
On March 19, 2001, the Estate filed a notice of appeal to the Court of Criminal Appeals. On November 21, 2001, relying on the fact of Cook's death, that court dismissed the appeal as moot, citing Rule 43(a), Ala. R. App. P.; Evans v. State, 728 So. 2d 1164 (Ala. Crim. App. 1998); Kennedy v. State, 690 So. 2d 1225 (Ala. Crim. App. 1997). Cook v. City of Gadsden, (No. CR-00-1259, November 21, 2001) ___ So. 2d ___ (Ala. Crim. App. 2001)(table). On January 4, 2002, the Estate petitioned this Court for a writ of certiorari.
The Estate's petition presents a question this Court has not previously addressed -- whether, under the circumstances presented here, the conviction in the municipal court should abate or whether it should remain a valid judgment. It is a settled proposition of law in this State that when a criminal defendant dies during the course of an appeal, the appeal is abated. See Stallworth v. State, 726 So. 2d 761 (Ala. Crim. App. 1998); Kennedy v. State, supra; Ulmer v. State, 39 Ala. App. 519, 104 So. 2d 766 (1958); Morgan v. State, 30 Ala. App. 510, 9 So. 2d 33 (1942); Ex parte Rosenblum, 98 So 219 (Ala. 1923); Browning v. State, 68 So. 545 (Ala. Ct. App. 1915). However, the status of the underlying conviction being challenged by that appeal has never been addressed. Accordingly, we consider the treatment of this issue by other jurisdictions.
This issue has been addressed by the federal courts on numerous occasions. In United States v. Christopher, 273 F.3d 294 (3d Cir. 2001), the United States Court of Appeals for the Third Circuit effectively summarized the federal courts' treatment
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