Opinion
No. 94-2022.
May 5, 1995.
An appeal from the Circuit Court for Suwannee County; James Roy Bean, Judge.
Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Douglas Gurnic, Asst. Atty. Gen., Tallahassee, for appellee.
ON MOTION FOR CERTIFICATION OF QUESTION TO THE FLORIDA SUPREME COURT
Appellant's appeal from a probation order requiring restitution was pending when she died in a traffic accident on or about March 17, 1995. As a result of appellant's death during pendency of this appeal, appellant's counsel filed a motion to abate this appeal ab initio. We grant the motion and abate ab initio this appeal and the underlying prosecution against appellant. Williams v. State, 648 So.2d 313 (Fla. 1st DCA 1995); Bagley v. State, 122 So.2d 789 (Fla. 1st DCA 1960). However, as in the recent case of Clements v. State, 652 So.2d 1294 (Fla. 1st DCA 1995), we grant the state's motion to certify the question presented here to the Florida Supreme Court. Because further appellate proceedings may ensue, we deny the motion to withdraw filed by counsel for appellant.
Accordingly, pursuant to Article V, section 3(b)(4) of the Florida Constitution, we certify the following question to the Florida Supreme Court as a question of great public importance:
DOES THE DEATH OF A CRIMINAL DEFENDANT AFTER JUDGMENT AND SENTENCE, BUT DURING THE PENDENCY OF THE APPEAL THEREFROM, REQUIRE THE PROSECUTION TO BE PERMANENTLY ABATED AB INITIO IN THE TRIAL AND APPELLATE COURTS?
WEBSTER, MICKLE and VAN NORTWICK, JJ., concur.