concurring.
I concur in the judgment of the court but I would dismiss “Dwyer’s” appeal on the ground that Dwyer is no longer subject to the jurisdiction of the court rather than for lack of standing as the majority does.
“Dwyer’s” appeal is premised on his contention that a criminal case abates upon the death of the accused at any point short of disposition of his appeal of right. “Dwyer” relies primarily on the Supreme Court decision in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971) (per curiam), where the Court stated that “death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.” Id. at 482-83, 91 S.Ct. at 860. (footnote omitted).
The present status of Durham is in doubt, however, because in Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), the Court dismissed the petition for certiorari on behalf of a deceased appellant. Notably, the Court did not remand for dismissal of the indictment. It stated “[t]o the extent that Durham ... *146may be inconsistent with this ruling, Durham is overruled.” Although Dove has been interpreted as overruling Durham only as to the proper disposition of a petition for certiorari, see United States v. Moehlenkamp, 557 F.2d 126, 127 (7th Cir.1977), the Durham court itself rejected any distinction between certiorari and appeal for purposes of analyzing the effect of the death of a petitioner or of an appellant. The Court stated, “[sjince death will prevent any review on the merits, ... the distinction between the two would not seem to be important_” Durham, 401 U.S. at 483 n. 91 S.Ct. at 860 n. *.
The issue of abatement because of the death of a defendant following a conviction is a difficult one, and recent cases in federal and state courts have not followed a uniform rationale or practice. See United States v. Chin, 848 F.2d 55 (4th Cir.1988) (disposed of on standing); United States v. Dudley, 739 F.2d 175 (4th Cir.1984) (penal sanction but not restitution order abates if defendant dies pending appeal); United States v. Oberlin, 718 F.2d 894 (9th Cir.1983) (abatement notwithstanding suicide); State v. McDonald, 138 Wis.2d 366, 405 N.W.2d 771 (Wis.App.1987) (abatement not justified where defendant committed suicide).
After canvassing the case law on this issue, I find myself in agreement with the concurring opinion of Judge Sundby in State of Wisconsin v. McDonald, 138 Wis.2d 366, 405 N.W.2d 771 (Wis.App.1987). Judge Sundby, disagreeing with the majority’s decision to uphold the trial court’s refusal to abate the information, conviction and sentence on the ground that the defendant had committed suicide, instead would have adopted “a very simple rule covering all deaths pending appeal, i.e., that the appeal is dismissed because the appellant is no longer subject to the jurisdiction of the court.” 405 N.W.2d at 774. I agree.
As Judge Sundby explained, many of the decisions holding the criminal action abated on the death of the defendant involved the assessment of a fine, and “[t]he abatement rationale was developed because the courts did not believe it was just to punish the defendant’s family for his offense.” 405 N.W.2d at 773 (citing Crooker v. United States, 325 F.2d 318, 321 (8th Cir.1963)). Whatever the validity of abatement as to a fine, abatement should not be applied to the conviction itself. Once the defendant has died, from whatever cause, there is no longer any valid basis for the judicial system to entertain any further action with respect to the conviction, at least in the absence of any collateral consequences. This case does not present the issue of the effect of death on a fine, because Dwyer committed suicide before he was sentenced. This case is, in a word, moot.