specially concurring.
I agree the restitution order creates "a final civil judgment in favor of the state and any victim," which shall "remain in force until the restitution order is paid in full." § 18-1.3-603(4)(a), C.R.8.2010. I write separately only to emphasize that the application of abatement ab initio leads to a paradoxical result in which defendant's criminal convietion is both vacated in its entirety and used as the basis for a final civil judgment.
The doctrine of abatement ab initio, which has been applied when a criminal defendant dies while an appeal of a conviction is pend*579ing, operates to extinguish ab initio all criminal proceedings initiated against the defendant. As a result, the appeal is dismissed, the underlying conviction is vacated, and the indictment or information is dismissed. See People v. Lipira, 621 P.2d 1389 (Colo.App.1980). Our supreme court adopted this common law doctrine in the early Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 P. 924 (1904), and Crowley v. People, 122 Colo. 466, 228 P.2d 387 (1950), cases. It is important to recognize, however, that the legal landscape has changed significantly since that time.
The supreme court, both in Overland Cotton and in Crowley, applied abatement ab initio based solely on its reasoning that "ilt is only the person adjudged guilty who can be punished, and a judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist." Overland Cotton, 32 Colo. at 265, 75 P. at 925. The supreme court's concern was to protect the interests of parties related financially to a criminal defendant, such as his heirs,. The court thus sought to prevent these related parties from being subject to criminal penalties due only to their relationship to the eriminal defendant because "[the purpose of enforcing a penal statute is to punish the person found guilty of violating its provisions." Id.
As the majority points out, however, the legislature has significantly altered the interests involved in a criminal conviction by enacting provisions for restitution of crime vie-tims. Restitution, in the form of a civil judgment, creates an interest in the convietion beyond that of punishment. The victim now has an interest in being made whole through the repayment of losses resulting from the criminal act. See § 18-1.3-608, C.R.S.2010.
Although the majority relies on the due process reasoning in People v. Valdes, 911 P.2d 703 (Colo. and People v. Rickstrew, 961 P.2d 1189 (Colo.App.1998), in applying abatement ab initio, I think it important to recognize that due process for the deceased defendant was not a concern of the supreme court in either Overland Cotton or Crowley. On the contrary, the only due process concerns shown by the supreme court were for those individuals related financially to the criminal defendant who may be punished as a result of the defendant's criminal conviction. I see no basis in Overland Cotton or Crowley on which to afford deceased criminal defendants due process rights.
Further, citing People v. Pagan, 165 P.3d 724, 731 (Colo.App.2006), the majority states that "a criminal conviction establishing the defendant's culpability is not required to impose restitution." The Pagan division, however, addressed a situation in which, after the defendant was convicted of certain offenses, a sentencing court imposed restitution based partly on other offenses of which the defendant was acquitted. This is different from the case at hand in which the conviction is abated from the beginning and an order of restitution alone is sustained without any underlying criminal conviction.
I therefore concur in the judgment.