Bagley v. State, B-222
| Citation | 83 A.L.R.2d 860,122 So.2d 789 |
| Decision Date | 28 July 1960 |
| Docket Number | No. B-222,B-222 |
| Parties | Lelia Padgett BAGLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
George A. Pierce, Jacksonville, for appellant.
Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.
The appellant, who was convicted of a felony, died subsequent to the filing of our opinion reversing the judgment and remanding the case for a new trial, 119 So.2d 400, but prior to the expiration of the time allowed for filing of a petition for rehearing. During that interim the Attorney General became informed of appellant's death and filed in this court a motion to abate ab initio the proceedings on the appeal and those in the trial court as well.
The motion to abate is resisted on two grounds: First, that such action might prejudice proceedings said to be pending in the trial court on behalf of appellant's estate to recover costs laid out by her incident to the trial and appeal, as are recoverable under § 939.06, Florida Statutes, F.S.A., where defendant in a criminal prosecution is acquitted or discharged. Second, that abatement of the proceedings at this juncture operates to deprive the estate, relatives and friends of the deceased defendant of whatever comfort or benefits they might have derived from our decision. We are unable to agree with these contentions.
Our search has revealed no Florida precedent to guide us. While there is some conflict of authority in other jurisdictions as to the effect of death pending appeal on the question of the enforcement against the convicted defendant's estate of a fine imposed by the sentence, and on the question of such enforcement of a judgment for costs entered pursuant to statutory authority, no such issue is presented by this appeal or by the motion under discussion. Whatever proceedings are pending in the trial court at this time are independent of this appeal and not official before this court. Our conclusions therefore, are not determinative of any rights of appellant's estate under §§ 939.01, 939.02, Florida Statutes, F.S.A., or otherwise. A comprehensive annotation on the general subject is found in 96 A.L.R. 1322.
It is the general rule that death of the defendant pending appeal from a conviction in a prosecution for crime abates the appeal and we adhere to it. There is no logical reason for any distinction based on whether a decision on the appeal has or has not been filed with the clerk of this court, the proper criterion being whether it has become final and the mandate issued, so as to deprive this court of further jurisdiction on the appeal, whether our judicial labors have been terminated. As such is not the case on this appeal, the motion to abate is timely as to the proceedings in this court.
A more difficult problem arises as to whether this court should extend the abatement to include the...
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