HARRY CLARENCE JACKSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Death of appellant during pendency of collateral attack on final conviction results in dismissal of appeal, as ab initio abatement does not apply to post-conviction proceedings.
When a defendant dies during a collateral attack on a final conviction, the appeal is dismissed outright, as ab initio abatement applies only to direct appeals.
[1] Death of a defendant pending collateral attack on a final conviction results in dismissal of the appeal, not ab initio abatement, which applies only to direct appeals.
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Join FLexlaw to unlock all legal intelligenceJackson appealed the denial of a habeas corpus petition challenging a criminal conviction. The trial court denied the petition as an unauthorized subs…
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SCHWARTZ, Chief Judge.
This is an appeal from the denial of an application for habeas corpus challenging a previous criminal conviction. The trial court based its determination on the ground that the petition was an unauthorized substitute for a Rule 3.850 motion which Jackson had not timely filed. During the pendency of this appeal, Jackson died in prison. On this ground, the appeal is dismissed.
The courts of Florida have uniformly held that the death of a defendant, during the course of and prior to the disposition of a direct appeal from his conviction, results in an ab initio abatement of the prosecution in the trial and appellate courts. Parker v. State, 530 So. 2d 1084 (Fla. 3d DCA 1988); see also, Kearns v. State, 536 So. 2d 1187 (Fla. 5th DCA 1989); D.R. v. State, 541 So. 2d 1202 (Fla. 3d DCA 1988).
This rule is not applicable here where the conviction has become final and only a collateral attack upon it is involved. In this circumstance, we conclude that the controlling analogy is the principle that a death during the pendency of a petition for writ of certiorari in the Supreme Court seeking review of an affirmance of a conviction on the merits results in the outright dismissal of that proceeding. See Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976); United States v. Pauline, 625 F. 2d 684 (5th Cir.1980).
Accordingly, this appeal is Dismissed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Clements, 668 So. 2d 980 (Fla. 1996)…ARDING and ANSTEAD, JJ., concur. . Other district courts 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).…
Authorities Cited
- Fed. Power Comm'n v. Transcon. Gas Pipe Line Corp., 423 U.S. 326 (U.S. 1976)
- Dove v. United States, 423 U.S. 325 (U.S. 1976)
- United States v. Pauline, 625 F.2d 684 (5th Cir. 1980)
- Parker v. State, 530 So. 2d 1084 (Fla. 3d DCA 1988)
- Kearns v. State, 536 So. 2d 1187 (Fla. 5th DCA 1989)
- D.R. v. State, 541 So. 2d 1202 (Fla. 3d DCA 1988)
- DAY v. State, 541 So. 2d 1202 (Fla. 2d DCA 1988)