Ex parte Estate of Cook
Decision Date | 03 July 2002 |
Citation | 848 So.2d 916 |
Parties | Ex parte ESTATE OF Matthew Ryan COOK. (In re Matthew Ryan Cook v. City of Gadsden.) |
Court | Alabama Supreme Court |
Jack W. Torbert, Jr., of Torbert & Torbert, P.A., Gadsden, for petitioner.
Alice B. Pruett, Gadsden, for respondent.
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.1 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) 851 So.2d 633 (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, 210 Ala. 401, 98 So. 219 (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 of this issue as follows:
"The Supreme Court of the United States encountered the issue a number of times in its early history. See, e.g., List v. Pennsylvania, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222 (1888)
. Rather than catalog those cases, however, we think it appropriate to begin in more modern times with Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971).
. The Court explained that `[t]o the extent that Durham... may be inconsistent with this ruling, Durham is overruled.' Id. at 325, 96 S.Ct. 579; see also Kelly v. Matusiak, 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986)(petition for certiorari dismissed); Mintzes v. Buchanon, 471 U.S. 154, 105 S.Ct. 2006, 85 L.Ed.2d 120 (1985)(order granting certiorari vacated, petition for certiorari dismissed); Warden, Green Haven State Prison v. Palermo, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1977)(petition for certiorari dismissed).
(interests of justice require that conviction not stand without resolution of the merits of an appeal); United States v. Zizzo, 120 F.3d 1338, 1346 (7th Cir.1997)(abating conviction of defendant who died before the Court was able to decide his appeal on the merits and remanding with instructions to vacate conviction and dismiss indictment); United States v. Logal, 106 F.3d 1547, 1552 (11th Cir.1997) ( ); United States v. Pogue, 19 F.3d 663, 665 (D.C.Cir.1994) ( ).
"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...."
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.2 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) ( ); State v. Hoxsie, 570 N.W.2d 379, 382 (S.D.1997)("Mere dismissal of the...
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Cherry v. State, CR-02-0374.
...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 Cherr......
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Surland v. State, 8, September Term, 2005.
...during the course of an appeal of right. The court held that the defendant's conviction abated upon his death. Ex parte Estate of Cook, 848 So.2d 916 (Ala. 2002).1 The Supreme Court of Alabama acknowledged that states have provided various policy reasons in support of the abatement Our revi......
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Bevel v. Commonwealth , Record Nos. 102246
...and state courts, see, e.g., Surland v. State, 392 Md. 17, 895 A.2d 1034, 1046 (2006) (Greene, J., dissenting); Ex parte Estate of Cook, 848 So.2d 916, 918 (Ala.2002), it is also true that a modern trend has been to limit or modify the application of the doctrine, or dispense with it entire......
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State v. Benn, DA 11–0031.
...scheme, the judgment is vacated and the indictment is dismissed, but only because the convicted defendant died.’ ” Ex parte Estate of Cook, 848 So.2d 916, 919 (Ala.2002) (citation omitted); see also State v. Carlin, 249 P.3d 752, 756 (Alaska 2011) (citation omitted) (under abatement ab init......