Opinion
No. 87-2266.
September 13, 1988.
An Appeal from the Circuit Court for Dade County; Thomas M. Carney, Judge.
Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Yvette Rhodes Prescott, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HUBBART and BASKIN, JJ.
ORDER PERMANENTLY ABATING CAUSE
On January 10, 1988, during the pendency of this appeal from his conviction and sentence for grand theft, 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 indictment); United States v. Pauline, 625 F.2d 684 (5th Cir. 1980) (abatement by death while appeal pending results in vacation of conviction and dismissal of indictment); compare Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976) (death results in dismissal of certiorari).