Ex parte Estate of Cook7/3/2002
Ninth, Tenth and Eleventh Circuits).
"Thus, the rule followed almost unanimously by the Courts of Appeals is that a conviction abates on the death of the accused before his appeal has been decided. ..." 273 F.3d at 296-97.
Our review of the jurisprudence of other states shows that a majority follow this same rule, and some have provided compelling policy reasons in support thereof. See People v. Robinson, 187 Ill.2d 461, 463, 719 N.E.2d 662, 663, 241 Ill.Dec. 533, 534 (1999)("the purpose of criminal prosecutions is to punish the defendant; continuing criminal proceedings when the defendant is dead is a useless act"); State v. Holland, 288 Mont. 164, 167, 955 P.2d 1360, 1362 (1998)(adopting rationale for abating criminal proceeding upon defendant's death set forth by the Arizona Supreme Court "that the interests of the state in protecting society have been satisfied, the imposition of punishment is impossible, and further collection of fines or forfeiture would result in punishing innocent third parties"); State v. Hoxsie, 570 N.W.2d 379, 382 (S.D. 1997)("Mere dismissal of the appeal, without abatement of the proceedings ab initio, would permit a judgment to stand that is not final."); Gollott v. State, 646 So. 2d 1297, 1300 (Miss. 1994)("What is obvious is that society needs no protection from the deceased .... Moreover, other potential criminals will be no less deterred from committing crimes. In the abatement ab initio scheme, the judgment is vacated and the indictment is dismissed, but only because the convicted defendant died. Surely this would not give peace of mind to the criminally inclined."); State v. McClow, 395 So. 2d 757, 758 (La. 1981)(abatement has as its purpose "serving the interest of the surviving family in preserving, unstained, the memory of the deceased defendant or his reputation"); State v. Griffin, 121 Ariz. 538, 592 P.2d 372 (1979)(rationale adopted in State v. Holland, supra); State v. Carter, 299 A.2d 891, 895 (Me. 1973)("By such principle of abatement, ab initio, there is avoided, likewise, danger of any potential collateral carry-over to affect personal or property rights of survivors of the deceased defendant or other persons.").
We are persuaded by these authorities; we conclude that Cook's conviction in the municipal court is due to be vacated as a result of his death during the course of his de novo appeal to the circuit court. The facts of this case present an appropriate occasion for the application of the ab initio abatement rule. At the time of Cook's death, he was exercising an appeal as of right; further, his appeal to the circuit court was de novo; he was being retried as if the municipal court conviction did not exist, and he had no burden to show reversible error -- the City had the burden of proving his guilt. § 12-14-70(c), Ala. Code 1975; Rule 30, Ala. R. Crim. P. Cook's first trial in the circuit court resulted in a hung jury, and a second trial could not be had because of his death.
We conclude, as did the Court of Criminal Appeals, based upon this State's existing caselaw, that Cook's appeal has abated as a result of his death. We further conclude, however, in line with the majority of other jurisdictions addressing this matter, that Cook's conviction in the municipal court is also due to be vacated. Accordingly, we remand the cause to the Court of Criminal Appeals for that court to remand for the municipal court to vacate Cook's conviction.
REMANDED WITH DIRECTIONS.
Houston , See, Lyons, Brown, Johnstone, Woodall, and Stuart, JJ., concur.
Moore, C.J., recuses himself.
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