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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Carlin (3/25/2011) sp-6547
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court Nos. S-13385/13573
Petitioner, ) (Consolidated)
)
v. ) Court of Appeals No. A-10155
) Superior Court No. 3AN-06-10139 CR
JOHN T. CARLIN III, )
) O P I N I O N
Respondent. )
) No. 6547 - March 25, 2011
)
JIMMIE DALE, )
) Court of Appeals No. A-09659
Petitioner, ) Superior Court No. 3PA-05-02725 CR
)
v. )
)
STATE OF ALASKA, )
)
Respondent. )
)
Petition for Hearing in File No. S-13385 from the Court of
Appeals of the State of Alaska, on appeal from the Superior
Court, Third Judicial District, Anchorage, Philip R. Volland,
Judge. Petition for Hearing in File No. S-13573 from the
Court of Appeals of the State of Alaska, on appeal from the
Superior Court, Third Judicial District, Palmer, Eric Smith,
Judge.
Appearances: Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and Appeals,
Anchorage, and Daniel S. Sullivan, Attorney General, Juneau,
----------------------- Page 2-----------------------
for State of Alaska. Marjorie Allard, Assistant Public
Defender, and Quinlan Steiner, Public Defender, Anchorage,
as amicus curiae and previous counsel for Respondent Carlin.
Christine S. Schleuss, Law Office of Christine Schleuss,
Anchorage, for Petitioner Dale. Allen M. Bailey, Law
Offices of Allen M. Bailey, Anchorage, for Amici Curiae
National Crime Victim Law Institute and Alaska Office of
Victims' Rights.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and
Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
We consolidated these two cases to resolve the following question: What
is the effect of the death of a criminal defendant while an appeal is pending? John
Carlin III was convicted of first-degree murder. He appealed his conviction to the court
of appeals and died before the opening brief was filed. Jimmie Dale was convicted of
several crimes arising out of a drunk driving incident. He appealed to the court of
appeals, which affirmed his conviction. He then filed a petition for hearing before this
court, and we granted the petition. But after filing his opening brief, Dale died. In each
case, the defendant's attorney filed a motion to dismiss the appeal and vacate the
conviction pursuant to the rule of abatement we adopted in Hartwell v. State.1
Because of changed conditions, including increased recognition of the
rights of crime victims and rejection of abatement by some state courts, we now overrule
Hartwell. We hold that when a criminal defendant dies after filing an appeal, or a
1 423 P.2d 282, 284 (Alaska 1967) (holding that the death of a criminal
defendant while a conviction is on appealwill permanently abate all criminal proceedings
and nullify the defendant's conviction).
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petition for hearing which has been granted, the defendant's conviction will stand unless
the defendant's personal representative elects to continue the appeal.
II. FACTS AND PROCEEDINGS
A. State v. Carlin
In September 2006 John Carlin III was indicted on a charge of first-degree
murder for killing Kent Leppink a decade earlier. A jury found Carlin guilty, and the
trial court sentenced Carlin to serve 99 years in prison. In a separate trial following his
conviction, Carlin's co-defendant, Mechele Linehan, was also convicted of first-degree
murder on the theory that she aided and abetted Carlin.2 Carlin appealed his conviction,
arguing that the superior court should not have admitted certain hearsay statements made
by Leppink and Linehan at his trial. Among the evidence admitted by the court was a
letter written by Leppink shortly before his death in which he stated that if he died under
mysterious circumstances, Linehan and either Carlin or another of Linehan's boyfriends
would probably be the ones responsible.
On October 27, 2008, before the opening brief in his appeal was filed,
Carlin was murdered in prison. Carlin's appellate attorney from the Alaska Public
Defender Agency moved to dismiss the appeal and vacate Carlin's criminal conviction
under the doctrine of abatement ab initio that we adopted in Hartwell v. State.3 The State
opposed the motion, arguing in the alternative that (1)Hartwell should not apply because
the abatement of Carlin's conviction could have collateral consequences for a retrial of
Linehan should she be successful in appealing her conviction for aiding and abetting
2 But see Linehan v. State, 224 P.3d 126, 130, 150 (Alaska App. 2010)
(reversing Linehan's conviction and concluding that Linehan is entitled to a new trial).
3 423 P.2d at 284. "Abatement" is defined as "[t]he act of eliminating or
nullifying" or "[t]he suspension or defeat of a pending action for a reason unrelated to
the merits of the claim." BLACK'S LAW DICTIONARY 3 (9th ed. 2009).
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Carlin; or (2) the doctrine of abatement announced inHartwell should be abandoned. The
court of appeals rejected the State's arguments and granted the motion to dismiss the
appeal and abate Carlin's conviction.
The State petitioned for a hearing, requesting that we revisit our ruling in
Hartwell. We granted the petition and permitted the Public Defender Agency to file an
amicus brief in light of its expressed concern about the propriety of continuing its
representation after Carlin's death. We also invited the Office of Victims' Rights to
participate as amicus curiae. After the State filed its opening brief, but before any
responsive brief was filed, the court of appeals reversed Linehan's conviction, holding
that it was error to admit Leppink's accusatory letter "from the grave."4
B. Dale v. State
On October 4, 2005, Jimmie Dale drove his truck off the road and down a
5
100-foot embankment, seriously injuring his two female passengers. A sergeant of the
Alaska State Troopers, who responded to the scene, learned that Dale had left on foot.
The sergeant located Dale a short distance away and believed that Dale had been
6 7
drinking. Dale was taken to a hospital along with his passengers, and there a trooper
directed the staff to take a blood sample from Dale without first obtaining a warrant. The
4 Linehan, 224 P.3d at 130-43, 150.
5 Dale v. State, 209 P.3d 1038, 1039 (Alaska App. 2009).
6 Id.
7 Id.
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test, taken more than three hours after the accident, revealed a blood-alcohol content
between 0.07 and 0.08.8
Dale was charged with driving under the influence, driving with a
suspended license, two counts of assault in the first degree, two counts of assault in the
third degree, and failure to remain at the scene and render assistance after an accident
causing injury. Dale moved to suppress the results of the blood test on Fourth
Amendment grounds,9 arguing that the warrantless blood draw was not supported by
exigent circumstances. The superior court denied Dale's motion, and a jury convicted
him of all charges.10 He was sentenced to 23 years and 40 days in prison. The court of
appeals affirmed.11
Dale then filed a petition for hearing, raising the issue of whether exigent
circumstances always exist in DUI cases. We granted the petition and set a briefing
schedule. After Dale filed his opening brief, but before the State filed its opposition,
Dale died in prison. The State moved to dismiss the appeal, leaving intact the decision
by the court of appeals. Dale's counsel requested that the appeal continue unless Dale's
conviction was abated. We stayed further briefing on the merits of Dale's petition and
ordered full briefing on the "abatement issue presented by Dale's death," inviting the
National Crime Victim Law Institute and the Alaska Public Defender Agency to submit
amicus briefs. In addition, we consolidated the matter with State v. Carlin for argument,
consideration, and decision.
8 Id. at 1039, 1040.
9 Id. at 1040.
10 Id.
11 Id. at 1044.
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III. STANDARD OF REVIEW
In State v. Carlin, the State challenges the decision by the court of appeals
to dismiss Carlin's appeal and abate his criminal prosecution under the common law
doctrine of abatement. We apply our independent judgment to questions of law, such
as the formulation and scope of common law rules.12 In Dale v. State, the issue of
abatement was first raised in a motion before this court, so there is no decision by a lower
court to review. We will overturn one of our prior decisions only when we are "clearly
convinced that the rule was originally erroneous or is no longer sound because of
changed conditions, and that more good than harm would result from a departure from
precedent."13
IV. DISCUSSION
A. Hartwell v. State14
In 1967 we addressed the following question: "[W]hat effect does the death
of the appellant, pending disposition of his appeal from a criminal conviction, have on
the proceedings."15 Robert Hartwell was found guilty by a jury of the crime of incest
and sentenced to seven years in prison with five years suspended.16 He appealed his
conviction and sentence to this court but died before his appeal was heard. We requested
briefing from the parties on the effect of Hartwell's death. The State submitted a three-
12 Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
177 P.3d 1181, 1184 (Alaska 2008).
13 Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175-76 (Alaska
1993) (quoting State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986)).
14 423 P.2d 282 (Alaska 1967).
15 Id. at 283.
16 Id.
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----------------------- Page 7-----------------------
page brief requesting that we abate Hartwell's criminal proceedings, a position different
from the one it takes today, and describing abatement ab initio as the "universal rule"
absent a statute to the contrary. Hartwell's attorney submitted a one-page letter
requesting that we resolve the appeal, noting that Hartwell's "reputation while alive is
important to his three remaining children."
We adopted the doctrine of abatement ab initio, holding that "all
proceedings are permanently abated as to appellant by reason of his death pending the
appeal."17 We gave three reasons for our holding: (1) "A majority of the federal and
state courts where the question has arisen" had adopted the doctrine of abatement ab
initio; (2) maintaining the conviction did not serve either of the two "underlying
principles of penal administration in Alaska[:] . . . reformation and protection of the
public"; and (3) "[d]eath ha[d] removed the appellant from the jurisdiction of this
court."18
When Hartwell was decided, a criminal defendant had a right to appeal his
conviction and sentence to the supreme court.19 In 1980, the Alaska Legislature created
the court of appeals to hear criminal appeals. Now criminal defendants can appeal to the
court of appeals as a matter of right, rather than to the supreme court.20 Supreme court
17 Id. at 284.
18 Id. at 283-84 (citations omitted).
19 Former AS 22.05.010 (1976), repealed by ch. 12, § 2, SLA 1980.
20 AS 22.07.010, .020, enacted by ch. 12, § 1, SLA 1980.
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----------------------- Page 8-----------------------
review of decisions by the court of appeals is discretionary, thus leaving criminal
defendants with only one appeal as a matter of right.21
Carlin, like Hartwell, died while his appeal as a matter of right was pending.
Therefore, our ruling inHartwell controls in State v. Carlin unless Hartwell is overruled.
In contrast, Dale's appeal to the court of appeals was resolved, and his
conviction affirmed. Dale died after we agreed to hear Dale's discretionary appeal. For
this reason, the State argues that Hartwell is not controlling. It urges us to follow the
"vast majority of courts that have addressed this issue" and have held that abatement ab
initio does not apply when a criminal defendant dies during discretionary review.22 But
as Dale's counsel notes, the cases cited by the State involve criminal defendants who
died before the higher court acted on their request for discretionary review. There is a
substantive difference between those cases and cases where, as here, the court has
granted the request for discretionary review prior to the defendant's death.
In one case directly on point,People v. Mazzone, the Illinois Supreme Court
applied the doctrine of abatement ab initio to a criminal defendant whose petition for
21 AS 22.05.010.
22 See Surland v. State, 895 A.2d 1034, 1035 (Md. 2006) ("The law
throughout the country seems clear, and by now mostly undisputed, that, if the
defendant's conviction has already been affirmed on direct appeal and the death occurs
while the case is pending further discretionary review by a higher court, such as on
certiorari, the proper course is to dismiss the discretionary appellate proceeding and
leave the existing judgment, as affirmed, intact."); see also Dove v. United States, 423
U.S. 325 (1976) (dismissing petition for writ of certiorari in criminal case upon notice
that petitioner had died); United States v. Moehlenkamp, 557 F.2d 126, 127 (7th Cir.
1977) (interpreting Dove as rejecting doctrine of abatement ab initio only for cases in
which a petition for writ of certiorari was pending).
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----------------------- Page 9-----------------------
discretionary review had been granted, but who died before the appeal was completed.23
The court found "the matter [to be] closely analogous to initial appeals as of right, and
the reasons justifying abatement [a]b initio there apply equally here."24 The State seeks
to distinguish Mazzone by arguing that unlike in Illinois, where "the discretionary nature
of the petition process ends with the grant of the petition," in Alaska we retain the right
to dismiss a petition as improvidently granted. This attempted distinction lacks merit:
In Illinois, as in Alaska, the supreme court can dismiss a petition as improvidently
granted.25
While Dale, unlike Carlin, already had the benefit of appellate review, in
granting his petition we decided that his case was one that warranted further appellate
review.26 By granting Dale's petition for hearing, we gave Dale a right to present his
appeal. Once that right has been conferred, there is no obvious basis for distinguishing
between Dale's position and that of a criminal defendant who has filed an appeal as a
matter of right. Thus, Hartwell, while not strictly controlling, is persuasive and should
be applied unless it is overruled. We now turn to the question of whether there are
grounds for overruling Hartwell before examining whether such a departure from the
doctrine of abatement ab initio is warranted and what alternatives are available.
23 383 N.E.2d 947, 950 (Ill. 1978).
24 Id.
25 See, e.g., People v. Thompson, 587 N.E.2d 484 (Ill. 1992).
26 In 2009 we granted only six of 88 petitions for hearing. ALASKA COURT
SYSTEM, ANNUAL STATISTICAL REPORT 2009, at 3, 6 (2010), available at
http://www.courts.alaska.gov/reports/annualrep-fy09.pdf.
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----------------------- Page 10-----------------------
B. Are There Grounds For Overruling Hartwell?
The State urges us to overrule our decision in Hartwell. Stare decisis
compels us to approach overruling one of our prior decisions carefully. "[S]tare decisis
is a practical, flexible command that balances our community's competing interests in
the stability of legal norms and the need to adapt those norms to society's changing
demands."27 We will overrule a decision only when convinced: (1) "that the rule was
originally erroneous or is no longer sound because of changed conditions," and (2) "that
more good than harm would result from a departure from precedent."28 We conclude that
both criteria are met here.
1. Is Hartwell no longer sound because of changed conditions?
The State argues that changes in the past 40 years since Hartwell was
decided render it no longer sound. These changes include the constitutional recognition
of victims' rights as part of the criminaljustice process and the growing number of states
that have rejected abatement.
To support a departure from precedent on the grounds of "changed
conditions," a party must show that "related principles of law have so far developed as
to have left the old rule no more than a remnant of abandoned doctrine, [or] facts have
so changed or come to be seen so differently, as to have robbed the old rule of significant
application."29
27 Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175 (Alaska
1993).
28 Id. at 1175-76 (quoting State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986)).
29 Id. (quoting Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S.
833, 855 (1992)).
-10- 6547
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a. Recognition of rights of crime victims
Both the State, and the National Crime Victim Law Institute and Alaska
Office of Victims' Rights in their amicus briefs, note the "dramatic shift" in the 40 years
since Hartwell was decided "to provide substantial constitutional and statutory rights to
crime victims during all phases of the criminal justice process." This shift has taken
place throughout the country.30 The State and amici argue that the constitutional and
statutory rights of crime victims, increasingly recognized since Hartwell, constitute a
changed condition that supports reconsideration of Hartwell and abandonment of the
doctrine of abatement ab initio.
In Alaska, the rights of crime victims were first given legal recognition in
1984, when the Alaska legislature addeda statutory provision enumerating those rights.31
In the same act, the legislature directed judges and parole boards to consider the interests
of crime victims when imposing felony sentences or considering the release of
prisoners.32 Five years later, the legislature passed a comprehensive Alaska Crime
Victims' Rights Act.33 The Act codified the rights of crime victims not only to be
30 According to the amici, more than thirty states have, like Alaska, amended
their constitutions to explicitly provide crime victims with rights and protections in
criminal justice proceedings, and every single state and the federal government grant
statutory rights to crime victims.
31 Ch. 154, § 4, SLA 1984 (codified at AS 12.61.010(a)). These rights
included the right to be notified of criminal proceedings, the right to be protected from
harm and threats, the right to be informed of the procedure to obtain restitution, and the
right to immediate medical assistance.
32 Ch. 154, §§ 1-2, 5-6, 8-9, SLA 1984.
33 Ch. 59, SLA 1989.
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----------------------- Page 12-----------------------
informed of criminal proceedings but to participate in sentencing and parole decisions.34
The legislature has continued to promulgate and refine statutes concerning the rights of
crime victims, for example defining a restitution order as a "civil judgment," thus
allowing a victim to use civil collection procedures to enforce a restitution order.35
In 1994 Alaska's voters overwhelmingly approved the Rights of Victims
of Crime Amendment to the Alaska Constitution.36 The amendment added article I,
section 24, providing that victims of crimes have "the right to be treated with dignity,
respect, and fairness during all phases of the criminal and juvenile justice process" and
"the right to restitution from the accused," among other rights.37 The amendment also
revised article I, section 12, which enumerates the goals of the criminal justice system.
Prior to the amendment, this section provided that "[p]enal administration shall be based
on the principle of reformation and upon the need for protecting the public,"38 a statement
on which we relied in Hartwell.39 The 1994 amendment expanded the goals of
"[c]riminal administration" to include "community condemnation of the offender, the
rights of victims of crimes, [and] restitution from the offender."40
Hartwell's assertion that the "underlying principles of penal administration
in Alaska are reformation and protection of the public" is thus no longer complete.
34 Id. §§ 4-5, 8, 14, 21, 27-28.
35 See ch. 92, SLA 2001; ch. 23, SLA 2002; ch. 17, SLA 2004.
36 See http://www.elections.alaska.gov/doc/forms/H28.pdf.
37 Alaska Const. art. I, § 24.
38 Alaska Const. art. I, § 12 (amended 1994).
39 Hartwell v. State, 423 P.2d 282, 284 (Alaska 1967).
40 Alaska Const. art. I, § 12.
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----------------------- Page 13-----------------------
Alaska's statutes and its constitution now also require the criminal justice system to
accommodate the rights of crime victims. The abatement of criminal convictions has
important implications for these rights. Therefore, the expansion and codification of
victims' rights since Hartwell provides the changed conditions needed to satisfy the first
element of the test for overruling precedent.
b. Rejection of the abatement ab initio doctrine by some
state courts
While the doctrine of abatement ab initio was the majority rule in federal
and state courts when Hartwell was decided, the State argues that "a steadily growing
number of state courts have rejected the doctrine."41 According to the State, these state
courts have pointed to the unfairness to crime victims of abating criminal convictions and
the doctrine's inconsistency with the presumption of guilt following a jury conviction.
Further, the State suggests that "more states have rejected abatement to some degree (22
states) than have retained it fully intact (19 states and the District of Columbia)."
The Public Defender Agency responds that "[a]lthough a few state courts
have moved away from the majority rule in the last few decades, a far greater number of
state courts have directly affirmed their continued adherence to the doctrine during this
same time."42 The Public Defender Agency points out that two states, Montana and
41 See State v. Korsen, 111 P.3d 130, 133 (Idaho 2005) ("[W]hen reviewing
the most recent cases, it is apparent that the trend has been away from abating a deceased
defendant[']s conviction ab initio."); Surland v. State, 895 A.2d 1034, 1039 (Md. 2006)
("[A]n increasingly smaller majority . . . of the courts that have considered the matter
adopt this full abatement approach.").
42 See Tim A. Thomas, Annotation, Abatement of State Criminal Case by
Accused's Death Pending Appeal of Conviction-Modern Cases, 80 A.L.R.4TH 189 (1990
& Supp. 2010) ("[T]he most frequently stated rule is that . . . the prosecution abates from
the inception of the case (ab initio)."); see also Korsen, 111 P.3d at 134 (referring to
(continued...)
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----------------------- Page 14-----------------------
Mississippi, have actually adopted abatement ab initio for the first time in the last few
decades.43 By the Public Defender Agency's count, a "majority (or near majority) of
state courts that have addressed the abatement issue continue to apply a strict rule of
abatement ab initio."
The State and the Public Defender Agency's primary source of
disagreement is in how to group the approaches to abatement taken by each state.44 The
Public Defender Agency separates states into four categories: (1) those that dismiss the
appeal and abate the criminal conviction (21 states and the District of Columbia);
(2) those that dismiss the appeal and do not abate the criminal conviction (five states);
(3) those that allow the appeal to continue in certain circumstances but otherwise abate
the criminal conviction (seven states); and (4) those that allow the appeal to continue in
certain circumstances but otherwise do not abate the criminal conviction (four states).
Under the Public Defender Agency's analysis, a solid majority of the states that have
42(...continued)
abatement ab initio as the "majority rule"); Surland, 895 A.2d at 1039 (noting that "a
slight majority" of states apply abatement ab initio). The Public Defender Agency also
notes, correctly, that federal courts that have addressed the issue have been essentially
unanimous in their application of the doctrine of abatement ab initio to abate the
conviction of criminal defendants. See John H. Derrick, Annotation, Abatement Effects
of Accused's Death Before Appellate Review of Federal Criminal Conviction, 80 A.L.R.
FED. 446 (1986 & Supp. 2009).
43 See Gollott v. State, 646 So. 2d 1297, 1304-05 (Miss. 1994) (overruling
prior precedent and adopting a modified approach where an appeal may go forward in
certain circumstances but a conviction will otherwise be abated); State v. Holland, 955
P.2d 1360, 1361-62 (Mont. 1998) (overruling prior precedent and joining "the majority
of jurisdictions in holding that prosecution of a criminal case abates in its entirety,
including fines, upon the death of the criminal defendant").
44 To support their analyses, each party has included an appendix where it
summarizes each state's caselaw on abatement.
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----------------------- Page 15-----------------------
addressed the issue (21 of 37) abate criminal convictions in all instances and an
additional seven states abate criminal convictions in some instances. The State, in
contrast, argues that all approaches other than a strict application of the abatement ab
initio doctrine should be grouped together. It further challenges some of the Public
Defender Agency's categorizations. Under the State's analysis, only 19 of 41 states
continue to dismiss the appeal and abate the criminal proceedings in all cases.
It is not necessary, or even useful, to choose between these two analyses.
Under the characterization of either party, it is clear that the legal landscape is very
different than it was whenHartwell was decided. Our own count, using slightly different
categories than either the State or the Public Defender Agency, confirms this. It appears
that the highest courts in 41 states have addressed abatement in some manner. The courts
in 19 states have continued to apply strictly the doctrine of abatement ab initio.45 Eight
45 State v. Griffin, 592 P.2d 372, 373 (Ariz. 1979) (in banc) ("[D]eath pending
appeal abates the appeal and the conviction."); People v. Gonzalez, 184 P.3d 702, 704
n.3 (Cal. 2008) ("[D]efendant's death will abate his appeal . . . ."); Crowley v. People,
223 P.2d 387, 388 (Colo. 1950) (en banc) ("As to the deceased, the proceedings are
abated by operation of law."); People v. Mazzone, 383 N.E.2d 947, 950 (Ill. 1978);
Maghee v. State, 773 N.W.2d 228, 231 n.2 (Iowa 2009) ("It is well established that
criminal prosecutions, including any pending appellate proceedings, abate upon the death
of the defendant."); State v. Morris, 328 So. 2d 65, 67 (La. 1976) ("[W]e adopt the
majority rule and hold that because of defendant's death while the appeal was pending,
the judgment of conviction must be vacated and all proceedings in the prosecution abated
from its inception."); State v. Carter, 299 A.2d 891, 894 (Me. 1973) ("[T]he death of the
defendant in such situation will be held to abate the appeal and require dismissal of it on
grounds both of mootness and the inability of the appellate tribunal to proceed because
of loss of an indispensable party to the proceeding . . . ."); Commonwealth v. Latour, 493
N.E.2d 500, 501 (Mass. 1986) ("When a criminal defendant dies pending his appeal, the
general practice is to dismiss the indictment."); State v. Holland, 955 P.2d 1360, 1362
(Mont. 1998) ("It further appears to us that the best reasoning is represented by the
majority of jurisdictions which hold that a criminal proceeding is abated in its entirety
(continued...)
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----------------------- Page 16-----------------------
states generally dismiss a deceased defendant's appeal but leave the conviction intact.46
45(...continued)
upon the death of the criminal defendant."); State v. Campbell, 193 N.W.2d 571, 572
(Neb. 1972); State v. Poulos, 88 A.2d 860, 861 (N.H. 1952) ("Since the defendant
Derrickson has died pending his appeal, the appeal on his behalf is abated."); People v.
Mintz, 229 N.E.2d 712, 713 (N.Y. 1967); State v. Dixon, 144 S.E.2d 622, 622 (N.C.
1965); Nott v. State, 218 P.2d 389, 389 (Okla. Crim. App. 1950) ("In a criminal
prosecution, the purpose of proceedings being to punish the accused, the action must
necessarily abate upon his death, and where it is made to appear that the defendant has
died pending the determination of the appeal, the cause will be abated."); State v.
Marzilli, 303 A.2d 367, 368 (R.I. 1973); State v. Hoxsie, 570 N.W.2d 379, 382 (S.D.
1997) (holding that defendant who pleaded guilty and then appealed sentence was only
entitled to have sentence abated but stating that it did not intend to disturb the general
rule of abatement ab initio); Carver v. State, 398 S.W.2d 719, 721 (Tenn. 1966) ("[W]e
hold that all proceedings in this case against Carver are abated ab initio."); Vargas v.
State, 659 S.W.2d 422, 423 (Tex. Crim. App. 1983) (en banc) ("Accordingly, the State's
motion to dismiss the appeals is overruled. The appeals, however, as well as any further
proceedings in the court below, are ordered permanently abated."); State v. Free, 260 P.
173, 174 (Wyo. 1927).
46 State v. Trantolo, 549 A.2d 1074, 1074 (Conn. 1988) ("[I]t has become
clear that, in this case, there is neither allegation nor evidence that the fine levied against
the defendant at trial would be collectible from his estate or that the judgment will
otherwise affect its interests. On this state of the record, the defendant's appeal must be
dismissed as moot."); State v. Raffone, 285 A.2d 323, 326 (Conn. 1971) ("[D]ue to the
death of Arcangelo, the appeal, as to him, is dismissed as moot."); Perry v. State, 575
A.2d 1154, 1156 (Del. 1990) ("[A]s a result of Perry's death, and in the absence of any
other real party in interest, this Court has been divested of its jurisdiction to proceed with
Perry's direct appeal. Consequently, the ultimate disposition in Perry's prosecution will
be determined by the status quo at the time of his death."); State v. Clements, 668 So. 2d
980, 981 (Fla. 1996) ("[W]e hold that upon the death of a criminal defendant, the appeal
of a conviction may be dismissed but is not to be abated ab initio."); State v. Korsen, 111
P.3d 130, 135 (Idaho 2005) ("[W]e hold that a criminal conviction and any attendant
order requiring payment of court costs and fees, restitution or other sums to the victim,
or other similar charges, are not abated, but remain intact, in the event of the defendant's
death following conviction and pending appeal."); Whitehouse v. State, 364 N.E.2d 1015,
1016 (Ind. 1977); People v. Peters, 537 N.W.2d 160, 163 (Mich. 1995) ("Where a
(continued...)
-16- 6547
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Two states have unique approaches; Alabama places a particular notation in the deceased
defendant's record,47 while Oregon gives judges discretion both to dismiss the appeal and
to vacate thejudgment.48 Eight states allow some mechanism for the appeal to continue
with substitution; if no substitution occurs some of those states abate the conviction while
others allow it to stand.49 Two states simply proceed with the appeal.50 This new
46(...continued)
defendant dies pending an appeal of a criminal conviction, we hold that the appeal should
be dismissed, but the conviction retained."), cert. denied, Peters v. Michigan, 516 U.S.
1048 (1996); State v. Anderson, 314 S.E.2d 597, 597 (S.C. 1984); State v. Christensen,
866 P.2d 533, 535 (Utah 1993). Three states dismiss the pending appeal upon
defendant's death, but it is unclear whether the underlying conviction is abated. See
Harris v. State, 194 S.E.2d 76, 77 (Ga. 1972);Royce v. Commonwealth, 577 S.W.2d 615,
616 (Ky. 1979) ("The fact of the conviction, whether it be regarded as legally final or
not, is history, and as such it cannot be expunged. What meaning and effect it may have
at some other time and place is not for the court to determine here and now."); In re
Carlton, 171 N.W.2d 727, 728 (Minn. 1969).
47 Wheat v. State, 907 So. 2d 461, 464 (Ala. 2005) ("We therefore hold that
when a person convicted of a crime dies while an appeal is pending in the Court of
Criminal Appeals and that court abates the appeal, pursuant to Rule 43(a), Ala. R.
App. P., by reason of the death of that person, the Court of Criminal Appeals shall
instruct the trial court to place in the record a notation stating that the fact of the
defendant's conviction removed the presumption of the defendant's innocence, but that
the conviction was appealed and it was neither affirmed nor reversed on appeal because
the defendant died while the appeal of the conviction was pending and the appeal was
dismissed.").
48 Or. R. App. P. 8.05.
49 State v. Makaila, 897 P.2d 967, 972 (Haw. 1995); Surland v. State, 895
A.2d 1034, 1044-45 (Md. 2006); Gollott v. State, 646 So. 2d 1297, 1304-05 (Miss. 1994)
("Thus, the state, in order to avoid abatement ab initio of the proceedings, may file a
Rule 43(a) motion, in which case we will substitute the decedent's representative, or
where appropriate, counsel of record, as party appellant and determine the merits of the
appeal."); City of Newark v. Pulverman, 95 A.2d 889, 894 (N.J. 1953) ("We hold the
(continued...)
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diversity of opinions among the high courts of states throughout the country is another
reason to conclude that the "changed conditions" element of the test for overruling
precedent is satisfied.51
2. Would more good than harm result from overruling Hartwell?
Because the State has successfully demonstrated changed conditions, we
must consider whether "more good than harm would result from a departure from
precedent" in this instance.52 In analyzing this element, we must balance the benefits of
adopting a new rule against the benefits of stare decisis: providing guidance for the
conduct of individuals, creating efficiency in litigation by avoiding the relitigation of
49(...continued)
belief that there is likewise no mootness insofar as the family of a deceased defendant is
concerned and that his legal representative should have the opportunity to establish on
appeal that the conviction was wrongful."); State v. Salazar, 945 P.2d 996, 1004 (N.M.
1997) ("This right is best vindicated by permitting the courts either (1) to continue the
appeal where a party moves for substitution or where the court deems that the interests
involved warrant completion of the review, or (2) to completely abate the proceedings
to their inception."); State v. McGettrick, 509 N.E.2d 378, 381-82 (Ohio 1987); State v.
Webb, 219 P.3d 695, 699 (Wash. 2009) (en banc) ("We hold that when a [defendant] dies
during the pendency of his or her appeal, that appeal may be pursued by a party
substituted under the provisions of RAP 3.2.");State v. McDonald, 424 N.W.2d 411, 414
(Wis. 1988) ("[W]e conclude that, when a defendant dies pending appeal, regardless of
the cause of death, the defendant's right to an appeal continues.").
50 State v. Jones, 551 P.2d 801, 804 (Kan. 1976); Commonwealth v. Walker,
288 A.2d 741, 744 (Pa. 1972).
51 See Kinegak v. State, Dep't of Corr., 129 P.3d 887, 890 (Alaska 2006)
(finding the "changed conditions" element to be satisfied "based primarily on changes
in the federal cases in the years since [the prior case] was decided").
52 Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska
2004).
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decided issues, and maintaining public faith in the judiciary.53 These countervailing
interests do not weigh heavily in this case. It is unclear how an individual would rely on
the rule adopted in Hartwell. That is, it is unlikely that a person would commit a crime
because he believed that, upon his death while his appeal was pending, his conviction
would be abated. As for the efficiency rationale, while it is true that overturning
Hartwell would result in some additional litigation of the continued appeals of deceased
defendants, the number of such cases should be small. As for the third factor, public faith
in the judiciary, allowing continued appeals will protect both victims and defendants by
providing the opportunity to have criminal charges fully litigated and decided.
C. Substitution Is The Appropriate Rule To Replace AbatementAb Initio.
The plurality of state courts that have considered the issue strictly apply the
doctrine of abatement ab initio.54 The Public Defender Agency urges us to continue to
apply this majority rule. In these states, when a criminal defendant dies while the
defendant's appeal is pending, the entire criminal prosecution including the conviction
is abated. Courts adopting abatement ab initio argue that the death of a criminal
defendant pending appeal frustrates his appeal rights and requires the abatement of his
conviction.55
53 See Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175-76 n.4
(Alaska 1993) (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970)).
54 See supra note 45.
55 See, e.g., United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977)
("[W]hen an appeal has been taken from a criminal conviction to the court of appeals and
death has deprived the accused of his right to [an appellate] decision, the interests of
justice ordinarily require that he not stand convicted without resolution of the merits of
his appeal . . . ."); People v. Rickstrew, 961 P.2d 1139, 1140 (Colo. App. 1998) ("[W]hen
an appeal has been taken from a conviction and death deprived the accused of his or her
(continued...)
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On the other extreme are those states that generally dismiss a deceased
defendant's appeal but leave the conviction intact. We count eight states that follow this
approach.56 Regardless of which rule it has ultimately adopted, almost every court that
has discussed the abatement issue has noted that a defendant is no longer presumed
innocent after a conviction; rather a convicted defendant is presumed guilty despite the
pendency of an appeal,57 and the conviction is presumed to have been validly obtained.58
Neither extreme seems to us to strike the correct balance. While abatement
is contrary to the victims' rights under the Alaska Constitution, relying on the
presumption of guilt after conviction to leave the conviction intact is contrary to the
defendant's right to appeal. Therefore, we choose the middle path, electing to follow
55(...continued)
right to appellate review, the defendant should not stand convicted.").
56 See supra note 46.
57 See, e.g., Wheat v. State, 907 So. 2d 461, 462 (Ala. 2005) ("A conviction
in the circuit court removes the presumption of innocence, and the pendency of an appeal
does not restore that presumption."); State v. Clements, 668 So. 2d 980, 981 (Fla. 1996)
("This Court has stated that the presumption of innocence ceases upon the adjudication
of guilt and the entry of sentence." (internal quotation marks omitted)); Whitehouse v.
State, 364 N.E.2d 1015, 1016 (Ind. 1977) ("The presumption of innocence falls with a
guilty verdict."); People v. Peters, 537 N.W.2d 160, 163 (Mich. 1995) ("The conviction
of a criminal defendant destroys the presumption of innocence regardless of the existence
of an appeal of right."); State v. McGettrick, 509 N.E.2d 378, 380 (Ohio 1987) (stating
that a convicted defendant "no longer stands cloaked with the presumption of innocence
during the appellate process"); State v. Devin, 142 P.3d 599, 605 (Wash. 2006) (en banc)
("[T]here is no presumption of innocence pending appeal.").
58 Clements, 668 So. 2d at 981 ("Furthermore, we have held that a judgment
of conviction comes for review with a presumption in favor of its regularity or
correctness."); Whitehouse, 364 N.E.2d at 1016 ("[When a guilty verdict is issued,]
although preserving all of the rights of the defendant to an appellate review, for good and
sufficient reasons we presume the judgment to be valid, until the contrary is shown.").
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those courts that allow the appeal to continue upon substitution.59 These courts have
provided that either the State or the defendant's estate may request substitution, allowing
another party to be substituted for the defendant. Specifically, we agree with the high
courts of Washington and Maryland that the defendant's estate may substitute in for the
deceased appellant. We so decide because allowing the defendant's appeal to continue
when the defendant's estate does not wish it would undermine the right to appeal that
substitution is meant to protect.60
59 See supra note 49.
60 The courts that have allowed substitution have done so pursuant to their
appellate rules. See, e.g., State v. Makaila, 897 P.2d 967, 972 (Haw. 1995) ("By its plain
language, HRAP Rule 43(a) allows for the substitution of a party for a deceased criminal
defendant." (internal citation omitted)); Gollott v. State, 646 So. 2d 1297, 1304 (Miss.
1994) ("On its face, Rule 43(a) allows for a substituted party in place of a criminal
defendant."); State v. Salazar, 945 P.2d 996, 1003 (N.M. 1997) ("The language of the
[appellate] rule clearly permits the personal representative or 'any other party' to seek
substitution of the deceased."); McGettrick, 509 N.E.2d at 381 ("The [appellate
substitution] rule clearly permits the decedent's personal representative to be substituted
as a party . . . ."); State v. Webb, 219 P.3d 695, 699 (Wash. 2009) (en banc) ("We hold
that when a decedent dies during the pendency of his or her appeal, RAP 3.2 permits a
party to be substituted on appeal."). Alaska Appellate Rule 516 provides for substitution
upon the death of a party to an appeal, but applies only to civil appeals. Because Alaska
has no appellate rule providing for substitution in criminal cases, we refer this matter to
the Supreme Court's Standing Advisory Committee on Appellate Rules. Until the rules
committee promulgates a new rule, a defendant's personal representative may substitute
upon the defendant's death. In the absence of an appearance and substitution, the
conviction will stand. We do not now address whether any other party besides the
defendant's personal representative has the right to substitute. In referring this matter to
the rules committee, we note the thoughtful discussion of the issue by the Washington
Supreme Court in State v. Devin, 142 P.3d 599, 606 (Wash. 2006):
[W]e do not preclude courts from abating financial penalties
still owed to the county or State, as opposed to restitution
owed to victims, where the death of a defendant pending an
(continued...)
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1. Jurisdiction
Courts that automatically dismiss a deceased defendant's appeal have
assumed that an appellate court may not proceed with the appeal because it has lost
jurisdiction.61 However, as we recognize in Appellate Rule 516, the death of an appellant
should not cause the court to lose jurisdiction over the defendant or the appeal.62 A court
obtains personal jurisdiction over a criminal defendant by the service of a summons and
complaint or by arrest.63 Once personal jurisdiction is obtained over a party, it will
60(...continued)
appeal creates a risk of unfairly burdening the defendant's
heirs.
61 See Hartwell v. State, 423 P.2d 282, 284 (Alaska 1967) ("Death has
removed the appellant from the jurisdiction of this court."); Perry v. State, 575 A.2d
1154, 1156 (Del. 1990) ("Therefore, as a result of Perry's death, and in the absence of
any other real party in interest, this Court has been divested of its jurisdiction to proceed
with Perry's direct appeal. . . . Perry's appeal is moot and is [dismissed]."); State v.
Kriechbaum, 258 N.W. 110, 113 (Iowa 1934) ("Death withdrew the defendant from the
jurisdiction of the court. It left no apportionment of jurisdiction."); State v. Holland, 955
P.2d 1360, 1362 (Mont. 1998) ("In a criminal case, however, no case or controversy
remains upon the death of the defendant."); State v. Campbell, 193 N.W.2d 571, 572
(Neb. 1972) ("The death of the defendant makes the case moot and requires dismissal of
the appeal.").
62 Cf. Collison v. Thomas, 360 P.2d 51, 54 (Cal. 1961) (in bank) ("The court
did not lose jurisdiction of the case in the strict sense upon Mrs. Kellogg's death. This
is established by the many cases in this state holding that the death of a party pending suit
does not oust the jurisdiction of the court, and hence that the judgment is voidable only,
not void. This does not mean that a judgment can be really rendered for or against a dead
man, but that it can be rendered nominally for or against him, as representing his heirs,
or other successors, who are the real parties intended." (internal quotation marks
omitted)).
63 See State v. Gottschalk, 138 P.3d 1170, 1173 (Alaska App. 2006)
(Mannheimer, J., concurring) (citing Alaska R. Crim. P. 4).
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generally not be lost as a result of subsequent events.64 The trial court properly obtained
personal jurisdiction over both Carlin and Dale, and they are, in a technical sense, still
subject to the jurisdiction of the Alaska courts, including the appellate court.
Nor does an appellate court lose subject matter jurisdiction over an appeal
when a party dies.65 Under AS 22.07.020 the court of appeals has appellate jurisdiction
over criminal prosecutions commenced in superior court. The supreme court has final
appellate jurisdiction in all actions and proceedings, including jurisdiction to "in its
discretion review a final decision of the court of appeals."66 No statute or court rule
divests these appellate courts of jurisdiction upon the death of a party. To the contrary,
in the case of civil appeals, the Alaska Appellate Rules specifically provide that the
"death of a party . . . shall not affect any appeal taken or petition for review made."67
64 See Kotsonis v. Superior Motor Express, 539 F. Supp. 642, 646 (M.D.N.C.
1982) (stating that, in the context of transfer of venue, "[p]ersonal jurisdiction once
obtained is not lost."); Gilford v. People, 2 P.3d 120, 130 (Colo. 2000) (en banc) (Hobbs,
J., concurring) (explaining that "[a] court does not generally lose jurisdiction by the
occurrence of a subsequent event, even if that event would have prevented acquiring
jurisdiction in the first instance"); Boardman v. Boardman, 62 A.2d 521, 525 (Conn.
1948) (regarding as settled law that "if a court of a state has jurisdiction when an action
is brought to it, a subsequent removal of a party from the state will not terminate that
jurisdiction"); People v. Goecke, 579 N.W.2d 868, 876 (Mich. 1998) ("Having once
vested in the circuit court, personal jurisdiction [over a criminal defendant] is not lost
even when a void or improper information is filed.").
65 See United States v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001)
(determining that appellate jurisdiction is not at issue where "defendant dies after
appealing the entry of a judgment of sentence" because a final order has been entered).
66 AS 22.05.010(a), (d).
67 Alaska R. App. P. 516(a).
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Thus, neither Carlin's nor Dale's appeal is subject to dismissal based on lack of personal
or subject matter jurisdiction.
2. Mootness
We will generally "refrain from deciding questions where the facts have
rendered the legal issues moot."68 A case becomes moot when it "has lost its character
as a present, live controversy" or when the "party bringing the action would not be
entitled to any relief even if" the party prevails.69
But a criminal appeal, even after the defendant has died, may remain a
"present, live controversy." Often, there will be a financial component, such as
restitution, to a criminal judgment, and the appeal will thus have financial consequences
for the defendant's estate. This situation is analogous to disputes over attorney's fees in
civil cases that are otherwise moot. InLaMoureaux v. Totem Ocean Trailer Express, Inc.
we held that such cases may continue.70
Even without monetary consequences, the appeal is not necessarily moot.
As discussed above, the particular sentence a defendant is to receive is but one
component of the administration of criminal justice. Article I, section 12 of the Alaska
Constitution provides that "[c]riminal administration shall be based upon the following:
the need for protecting the public, community condemnation of the offender, the rights
of victims of crimes, restitution from the offender, and the principle of reformation."71
68 O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996) (internal
quotation marks omitted).
69 Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998).
70 651 P.2d 839, 840 n.1 (Alaska 1982).
71 Alaska Const. art. I, § 12.
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The interests of the victim and the community's interest in condemning the offender
persist even after the defendant's death.
The defendant's interests also support treating the appeal as not moot. The
appeal has important consequences for the defendant's reputation and estate, as explained
by the former Chief Justice of the Supreme Court of Wisconsin:
It is not [defendant's] appeal which is moot, as the dissent
would have it, but rather it is his death which is moot,
because he did not take the potential errors of our justice
system into the grave with him. These potential errors remain
behind to perplex and confound his relatives, friends,
reputation, and the legal system. Indeed, an important point
of the majority opinion is that these errors remain behind to
worry society at large, because such important collateral
matters as inheritance, insurance benefit distribution, and
distribution of various property may wind up being
conclusively determined without benefit of a review for error
in the potentially controlling criminal action.[72]
3. Representation
Though the death of a criminal defendant does not require dismissal of the
appeal for mootness or lack of jurisdiction, it creates obvious practical complications for
continuing an appeal. Of immediate concern will likely be whether, after the defendant
dies, his attorney can continue to prosecute the appeal. If the defendant's attorney can
no longer act as defendant's representative, then the appeal may be subject to dismissal
for failure to prosecute.73 The Court of Appeals of Maryland thoughtfully discussed this
72 State v. McDonald, 424 N.W.2d 411, 415 (Wis. 1988) (Heffernan, C.J.,
concurring).
73 Alaska R. App. P. 511.5; see also Alaska R. Civ. P. 25(a) (civil case
dismissed if no timely motion for substitution is made following the death of a party);
Surland v. State, 895 A.2d 1034, 1045 (Md. 2006) ("If no substituted party comes forth
(continued...)
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issue. It first noted that "the defendant's death, as a matter of agency law, would
ordinarily terminate the lawyer-client relationship and, with that termination, the
authority of the erstwhile agent . . . to continue an appeal already noted."74 But taken to
its logical extreme, continued the court, that conclusion would prevent defendant's
counsel from moving for dismissal of the prosecution and even seeking to abate the
conviction.75 In Carlin v. State, the Public Defender Agency filed such a motion before
the court of appeals. Because courts allow these motions, an attorney must have some
authority to act on behalf of a deceased client. The Maryland court further observed that,
"[a]s a practical matter, the role that the client plays in criminal appeals is very limited."76
In the case of a privately retained attorney, the personal representative of
the defendant's estate can elect to continue the attorney's services. We conclude that the
public defender is also authorized to continue representing a deceased defendant after the
personal representative of the defendant's estate chooses to continue the appeal. The
Public Defender Act provides that "[a]n indigentperson who is under formal charge of
73(...continued)
within the time allotted by Rule 1-203(d) and elects to continue the appeal, it will be
dismissed, not for mootness but for want of prosecution, and, as with any appeal that is
dismissed, the judgment will remain intact.").
74 Surland, 895 A.2d at 1041, 1045.
75 Id. at 1041. The Supreme Court of Idaho, after noting that "[a]n attorney in
a criminal case may not withdraw from representation of a defendant without leave of
court," held that an attorney has the authority to file a motion to abate the conviction of
a client that has died during an appeal. State v. Korsen, 111 P.3d 130, 132-33 (Idaho
2005).
76 Surland, 895 A.2d at 1041 n.3;see also Coffman v. State, 172 P.3d 804, 807
(Alaska App. 2007) ("[E]ven though it is the [criminal] defendant's decision whether to
appeal, it is the attorney's role to decide which issues to raise on appeal.").
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having committed a serious crime and the crime has been the subject of an initial
appearance or subsequent proceeding, or is being detained under a conviction of a serious
crime" is entitled to "be represented."77 At oral argument, there was debate about
whether the word "person" could include a deceased defendant. Some courts, when
construing other statutes using the word "person," have held that "person" can include
the deceased78 while other courts have held that it cannot.79 In the context of appeals on
behalf of deceased defendants, Maryland has allowed continued representation by the
public defender.80 Because the purpose of the Public Defender Act is to provide
representation comparable to representation by private attorneys,81 we interpret the Public
77 AS 18.85.100(a) (emphasis added).
78 See, e.g., United States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir. 2010),
cert. denied, Maciel-Alcala v. United States, 131 S. Ct. 673, 2010 WL 4168514 (Nov. 29,
2010); United States v. LaFaive, 618 F.3d 613, 618 (7th Cir. 2010 ) ("We are also
unpersuaded that because some states have drafted identity theft statutes that explicitly
mention deceased individuals, we should not read deceased persons into the definition
of "person" in § 1028A. That Congress could have drafted the statute differently does not
negate the plain meaning of the statute as enacted."); State v. Hardesty, 213 P.3d 745,
749 (Kan. App. 2009) (holding that an identity theft statute's use of term "person"
included both living and deceased victims of identity theft).
79 See, e.g., Guyton v. Phillips, 606 F.2d 248, 250-51 (9th Cir. 1979).
80 Surland v. State, 895 A.2d 1034, 1045 (Md. 2006) ("Because counsel,
whether private counsel or the Public Defender, is usually already in the case and, but for
the appellant's death, would be obliged to see it through, we see no reason why, unless
a substituted party obtains other counsel, counsel already of record should not continue
to prosecute the appeal, as they were employed or appointed to do.").
81 See McKinnon v. State, 526 P.2d 18, 22 (Alaska 1974) ("Once counsel is
appointed to represent an indigent defendant, whether it be the public defender or a
volunteer private attorney, the parties enter into an attorney-client relationship which is
no less inviolable than if counsel had been retained.") (quoting Smith v. Superior Court,
(continued...)
-27- 6547
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Defender Act to allow continued representation on appeal after the death of the defendant
where the defendant's estate chooses to proceed with the appeal.
V. CONCLUSION
In State v. Carlin, we REVERSE the order of the court of appeals granting
the motion by Carlin's counsel to dismiss Carlin's appeal and abate his criminal
proceedings. We REMAND to the court of appeals to continue the case for 60 days,
during which time Carlin's estate may move for substitution and to proceed with the
appeal; if no motion is filed, the court of appeals is directed to dismiss the appeal and to
leave Carlin's conviction intact. In Dale v. State, we DENY the State's motion to
dismiss the appeal and Dale's attorney's cross-motion for abatement ab initio or to
continue the appeal. Dale's estate has 60 days in which to move for substitution and to
proceed with the appeal; if no motion is filed, we will dismiss the petition and leave
Dale's conviction intact.
81(...continued)
440 P.2d 65, 74 (Cal. 1968)).
-28- 6547
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