Opinion
No. 2742.
February 7, 1962.
Appeal from the Circuit Court of Martin County, C. Pfeiffer Trowbridge, J.
Sidney M. Dubbin, West Palm Beach, for appellant.
Richard W. Ervin, Atty. Gen., and Robert R. Crittenden, Asst. Atty. Gen., for appellee.
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.