JACK HARLOW KEARNS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
ORFINGER, Judge.
The order previously entered herein dismissing this appeal because of the death of appellant is withdrawn and the following opinion is substituted in its place.
Appellant was convicted of manslaughter in the Circuit Court of Brevard County. Pending direct (albeit a permitted belated) appeal from that conviction, the appellant died. Under these circumstances, permanent abatement, ab initio, of the prosecution, both in this court and the trial court is the appropriate procedure to follow. See Parker v. State, 530 So. 2d 1084 (Fla. 3d DCA 1988); Cruz v. State, 137 So. 2d 254 (Fla. 2d DCA 1962); Bagley v. State, 122 So. 2d 789 (Fla. 1st DCA 1960).
ORDERED ACCORDINGLY.
SHARP, C.J., and DAUKSCH, J., concur.
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Birch v. Albert, 761 So. 2d 355 (Fla. 3d DCA 2000)…stion about litigation history is ambiguous, and counsel does not inquire further to clarify that ambiguity.7 See Taylor v. Public Health Trust of Dade County, 546 So. 2d 733 (Fla. 3d DCA), review denied, 557 So. 2d 867 (Fla.1989); State v. McGough, 536 So. 2d 1187 (Fla. 2d DCA 1989). And second, because defense counsel did not diligently discover this information. Given ample opportunity to do so, defense counsel failed to inquire further about Ferrer-Young’s litigation history, or follow-up on her responses…
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State v. Clements, 668 So. 2d 980 (Fla. 1996)…ourts have also found that abatement ab initio is proper where a defendant dies pending resolution of his or her appeal. See Carstens v. State, 638 So. 2d 630 (Fla. 4th DCA 1994); Jackson v. State, 559 So. 2d 320 (Fla. 3d DCA 1990); Kearns v. State, 536 So. 2d 1187 (Fla. 5th DCA 1989); D.R. v. State, 541 So. 2d 1202 (Fla. 2d DCA 1988); Parker v. State, 530 So. 2d 1084 (Fla. 3d DCA 1988); Cruz v. State, 137 So. 2d 254 (Fla. 2d DCA 1962).…
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Nicholas v. State, 47 So. 3d 297 (Fla. 2d DCA 2010)…for removal of that juror mid-trial and substitution with an alternate juror. See, e.g., Wilson v. State, 608 So. 2d 842, 843 (Fla. 3d DCA 1992) (finding dismissal of juror and replacement with alternate mid-trial proper); see also State v. McGough, 536 So. 2d 1187, 1189 (Fla. 2d DCA 1989) (“In addition to an untruthful response on voir dire, a juror’s concealment of information which may have been material to whether that juror would be excused by peremptory challenge or for cause, when such concealment is no…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lelia Padgett Bagley v. State, 122 So. 2d 789 (Fla. 1st DCA 1960)
- Parker v. State, 530 So. 2d 1084 (Fla. 3d DCA 1988)
- Cruz v. State, 137 So. 2d 254 (Fla. 2d DCA 1962)