State v. McCury

Miami-Dade County Circuit Court

State v. McCury

27 Fla. Supp. 84

Circuit Court of the 11th Judicial Circuit of Florida, Miami-Dade County·Decided June 13, 1966·No. No. 5925·Published

Opinion

HENRY L. BALABAN, Circuit Judge.

Order on motion to abate: In a criminal proceeding, where defendant was convicted in the trial court and appealed, but died pending the appeal, the proceedings are abated ab initio and in toto which includes the trial action and the appeal.

To “abate” is to render non-existent. The question of appellant’s guilt is necessarily left undetermined, and the legal presumption of innocence abides. Bagley v. State (Fla. App. 1960), 122 So.2d 789; Cruz v. State (Fla. App. 1962), 137 So.2d 254.

It is accordingly ordered and adjudged that this appeal as well as the proceedings and judgment in the trial court are abated.

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HENRY L. BALABAN, Circuit Judge.

Order on motion to abate: In a criminal proceeding, where defendant was convicted in the trial court and appealed, but died pending the appeal, the proceedings are abated ab initio and in toto which includes the trial action and the appeal.

To “abate” is to render non-existent. The question of appellant’s guilt is necessarily left undetermined, and the legal presumption of innocence abides. Bagley v. State (Fla. App. 1960), 122 So.2d 789; Cruz v. State (Fla. App. 1962), 137 So.2d 254.

It is accordingly ordered and adjudged that this appeal as well as the proceedings and judgment in the trial court are abated.

State v. McCury, 27 Fla. Supp. 84 (Fla. Super. Ct. 1966).

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Opinion

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