A. LOPEZ CRUZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the death of a defendant pending appeal abates all proceedings, both in the trial court and on appeal, ab initio.
The defendant was convicted of robbery and subsequently died while his appeal was pending. The Attorney General moved to abate all proceedings.…
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The defendant was tried, convicted and sentenced for the crime of robbery. Subsequently his appeal was lodged in this court and is now pending.
Counsel for the defendant-appellant has filed, under oath, a suggestion of the death of the appellant. The Attorney General, being informed of appellant’s death, has filed in this court a motion to abate ab initio these proceedings on appeal as well as those in the trial court.
In Bagley v. State, Fla.App. 1960, 122 So.2d 789, it was held that the death of the defendant pending appeal from a conviction in a prosecution for crime abated ab initio all the proceedings on the appeal. The court said at page 791:
“The obliterative effect of abatement ab initio necessarily leaves undetermined the question of the appellant’s guilt. For whatever comfort or benefit derivable therefrom, the legal presumption of innocence of the crime with which she was charged abides now in no less degree than before the criminal proceedings were instituted. * * * ”
See also annotation, 96 A.L.R. 1322.
The motion to abate all proceedings on this appeal and in the court below is, therefore, granted.
KANNER and SMITH, JJ., concur.
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State v. Clements, 668 So. 2d 980 (Fla. 1996)…30 (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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Parker v. State, 530 So. 2d 1084 (Fla. 3d DCA 1988)…eft, the appellant Antonio Parker died in custody. We conclude that, under these circumstances, permanent ab initio abatement of the prosecution, both in the trial court and in this one, is appropriate and is therefore hereby ordered. Cruz v. State, 137 So. 2d 254 (Fla. 2d DCA 1962); Bagley v. State, 122 So. 2d 789 (Fla. 1st DCA 1960); cf. United States v. Romano, 755 F. 2d 1401 (11th Cir.1985) (death pending direct appeal of criminal conviction results in dismissal of appeal as moot and dismissal of indictme…
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Kearns v. State, 536 So. 2d 1187 (Fla. 5th DCA 1989)…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.…
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)