COBB, Judge.
On May 22, 2002, Bobby Frank Cherry was convicted of four counts of murder. The trial court imposed four consecutive life sentences. On appeal, this Court affirmed his convictions and sentences. Cherry v. State, [Ms. CR-02-0374, October 1, 2004] ___ So. 2d ___ (Ala. Crim. App. 2004).
On October 15, 2004, Cherry filed an application for rehearing in this Court. On November 19, 2004, this Court overruled his application for rehearing. On that same date, Cherry's attorney filed a "Suggestion of Death and Motion for Remand to Vacate Convictions," stating that Cherry had died on November 18, 2004, the day before this Court overruled his application for rehearing.
In his motion, Cherry's attorney, citing to the Alabama Supreme Court's case of Ex parte Estate of Cook, 848 So. 2d 916 (Ala. 2002), requested that this Court dismiss Cherry's appeal as moot and remand this cause to the trial court for that court to vacate Cherry's four murder convictions. On November 23, 2004, the State filed a response, requesting that this Court allow Cherry's convictions to stand; the State argued that Cherry's application for rehearing was a discretionary action and, therefore, that Ex parte Estate of Cook was inapplicable. On November 30, 2004, Cherry's attorney responded to the State, arguing that Cherry's convictions were to be vacated because, the attorney contended, Cherry's right to file an application for rehearing was "absolute" and also arguing that the judgment of this Court was not final because we had not yet issued a certificate of judgment. For the reasons below, we agree with the State. Cherry's convictions and sentences stand.
In Ex parte Estate of Cook, Cook was convicted in municipal court of driving under the influence. He filed a notice of appeal to the circuit court for a trial de novo. At the circuit court level, a mistrial was declared and a new trial ordered. While awaiting a second trial in circuit court, Cook died. Cook's counsel sought the dismissal of the charge against Cook, arguing that Cook's death constituted an abatement of his prosecution and that his conviction in municipal court should be vacated as a nullity. That Alabama Supreme Court held that, "under the circumstances presented [t]here," Cook's conviction in municipal court was "to be vacated as a result of his death during the course of his de novo appeal to the circuit court." Cook, 848 So. 2d at 917, 919. The Alabama Supreme Court reasoned:
"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."
Cook, 848 So. 2d at 919. The Alabama Supreme Court further noted in a footnote:
"Because the issue has not been presented in this case, we do not address whether the abatement ab initio rule applies when the death of a criminal defendant occurs during the course of a discretionary appeal."
842 So. 2d at 919 n.3.
In Wheat v. State, [Ms. CR-02-2171, June 18, 2004] ___ So. 2d ___ (Ala. Crim. App. 2004), Wheat was convicted in circuit court of five counts of capital murder and was sentenced to death. Wheat filed his notice of appeal to this Court on June 12, 2003. The trial judge subsequently filed a "Notice of Death," stating that Wheat had died on May 6, 2004. In holding Wheat's appeal as moot and remanding his case to the trial court for that court to vacate his capital-murder convictions, this Court stated:
"The Supreme Court in Cook intended to adopt the rule followed by the majority of state and federal jurisdictions—when a defendant dies while an appeal as of right of his or her conviction is pending the prosecution abates ab initio. We are bound by the decisions of the Alabama Supreme Court. § 12-3-16, Ala. Code 1975. Wheat died while his appeal granted to him as of right by statute was pending before this Court. According to the reasoning of Cook, Wheat's conviction was not entitled to any degree of finality."
Wheat, ___ So. 2d at ___ (footnote omitted).1
Our initial inquiry, then, is whether filing an application for rehearing in Alabama constitutes a discretionary appeal or an appeal as of right. We have addressed this issue in Kinsey v. State, 545 So. 2d 200, 203 (Ala. Crim. App. 1989), in determining whether a defendant has a right to counsel in the filing of an application for rehearing:
"In this case, the dispositive question is whether a rehearing in the Alabama Court of Criminal Appeals is a matter of right or a matter of discretionary appellate review? We hold that a rehearing before this Court is a matter of discretion to which the right of counsel does not attach.
"In Alabama, all persons convicted of a criminal offense are granted the right to an appeal by Alabama Code 1975, § 12-22-130. This appeal is a right granted to the defendant and is to the Court of Criminal Appeals. Alabama Code 1975, § 12-3-9. Any subsequent review of a criminal conviction by a higher state appellate court is by writ of certiorari to the Alabama Supreme Court. Review by certiorari is entirely discretionary with our Supreme Court (except in capital cases2. See [Ala. R. App. P.] Rule 39; Ex parte Sellers, 250 Ala. 87, 33 So. 2d 349 (1948). The Supreme Court will consider a petition for writ of certiorari `only after the court of appeals has overruled an application for rehearing....' [Ala. R. App. P.] Rule 39(a). Thus, a rehearing by this Court lies somewhere between a defendant's first appeal as a matter of right and a subsequent discretionary review.
"With regard to rehearings,
"`it is generally the rule that, except in cases provided for by statute, a rehearing is not a matter of right, but a privilege given by the appellate court, and governed and limited by its rules. Accordingly it is often held that an application for a rehearing of an appeal addresses itself to the discretion of the court, and its decision in the matter is final.' 5 C.J.S. Appeal & Error § 1409 (1958) (footnotes omitted) (emphasis added).
"Section 12-22-130, which provides for an appeal as of right, does not contain any reference to a rehearing. We have not found any statute which grants rehearing by this Court as a matter of right."
As for the rationale for treating an appeal as of right differently from a discretionary appeal in the event of the defendant's death, we turn to West v. United States, 659 A.2d 1260, 1261-62 (D.C. 1995), in which the court reasoned:
"Appellant argues that this court's ruling in Howell v. United States, 455 A.2d 1371 (D.C. 1983) (en banc), supports his contention that his conviction should be abated ab initio, pointing out that in Howell we stated that `[w]hen the defendant dies before he has exhausted his right of appeal' the underlying conviction should be vacated and the prosecution abated ab initio. Id. at 1372. We disagree.
"Consideration of the procedural background of Howell, quite different from that of the present case, clarifies why our holding there does not support appellant's contention. A division of this court reversed Howell's conviction for possession of marijuana and remanded the case with directions to suppress the marijuana evidence. Id. Upon learning of the division's decision, appellant's counsel tried to telephone Howell, only to learn that he had been murdered some five months before the division opinion issued. Id. Upon being notified of that fact, government counsel filed a suggestion of death. Id. Over the objection of Howell's counsel, the division vacated its opinion reversing the conviction and dismissed the appeal, nunc pro tunc. Id. The en banc court took a different view, ordering not only that the appeal be dismissed, but also that the case should be remanded to the trial court so that the conviction could be vacated and the prosecution abated by reason of death. Id. at 1373.
"In reaching our decision in Howell, we relied on the Supreme Court's decision in Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), a case in which the Court dismissed a petition for certiorari that was pending at the time the petitioner died. In its brief opinion in Dove, the Supreme Court stated that to the extent that its holding was inconsistent with its previous opinion in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), Durham was overruled. Upon the death of the petitioner in Durham while his petition for certiorari was pending, the Supreme Court had disposed of the case by granting the petition for certiorari, vacating the judgment below, and remanding the case to the District Court with instructions to dismiss the indictment. While the language of Dove was cryptic, it is frequently interpreted as holding that, upon the death of an appellant, appeals of right should be treated differently from discretionary appeals. See, e.g., United States v. Pauline, 625 F.2d 684 (5th Cir. 1980); United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir.1977); Jones v. State, 302 Md. 153, 486 A.2d 184 (1985).
"This court was of that view in Howell, stating: `The rationale for distinguishing between cases of death pending an appeal as of right and cases involving death pending discretionary review of a conviction is compelling.' Howell, supra, 455 A.2d at 1373. In making that observation, this court relied upon and cited portions of...
