Perry v. State

821 P.2d 1284 (1992)

David D. PERRY, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. 90-111.

Supreme Court of Wyoming.

February 18, 1992.

ORDER WITHDRAWING PREVIOUS OPINION

The above-entitled matter having come on before the Court on appellee's Motion for Rehearing, the Court, being fully advised in the premises, finds that:

1. On November 13, 1991, this Court issued an opinion in this case reversing appellant's conviction. Perry v. State, 821 P.2d 1273 (Wyo. 1991).

2. On December 2, 1991, the State filed a petition for rehearing, which was granted on January 3, 1992. In the process of deciding the petition, this Court became aware that appellant had died on May 14, 1991, which was prior to the issuance of the Court's opinion. The Court was unaware of appellant's death at the time the opinion was issued.

3. We have previously held that "the death of the defendant in a criminal case pending appeal, in the absence of a statute expressing the contrary, permanently abates the action and all proceedings under the judgment." State v. Free, 37 Wyo. 188, 189, 260 P. 173 (1927). When appellant died, his appeal died with him. This Court no longer had jurisdiction to act in appellant's case.

IT THEREFORE IS ORDERED that the opinion previously published in the case at 821 P.2d 1273 (1991) be, and the same hereby is, withdrawn.