specially concurring:
I concur in the holding that the Robinson and Golden convictions should be voided ab initio. I also concur in the holding that the Rights of Crime Victims and Witnesses Act (725 ILCS 120/1 et seq. (West 1996)) and article I, section 8.1, of the state constitution (111. Const. 1970, art. I, § 8) preclude the abatement ab initio of defendants Dunn, Wallace and Dye’s convictions.
The dissent relies on People v. Mazzone, 75 Ill. 2d 44 (1978), for its position that all of the convictions at issue before this court should be voided ab initio. In the only reported case citing Mazzone on the issue of the effect of the death of a defendant while his case was on appeal, People v. Hovanec, 76 Ill. App. 3d 401 (1979), the appeal was merely dismissed. The defendant’s conviction was not vacated ab initio.
In the only other reported case involving the death of a defendant while his case was on appeal (by the State), People v. Milner, 101 Ill. 2d 573, 469 N.E.2d 1067 (1984), our supreme court dismissed the State’s petition for leave to appeal the appellate court’s reversal of the defendant’s murder conviction. The supreme court did not vacate the defendant’s convictions of involuntary manslaughter and concealment of a homicidal death.
The dissent asserts that due to our application of the Act and the constitutional amendment “strange results occur.” The examples given in the dissent, the voiding ab initio of a defendant’s convictions of multiple burglaries but denying this relief to a defendant convicted of driving under the influence when another person was injured in the auto accident are completely legally consistent. It is the violence to the victim that triggers the application of the Act and the constitutional amendment.
When a defendant has died during the pendency of his appeal and his conviction is voided ab initio, the defendant “stands as if he never had been indicted or convicted.” United States v. Schumann, 861 F.2d 1234, 1237 (11th Cir. 1988). Title 18 U.S.C. § 3663(a)(1) states that, before the court can impose a restitution order, a defendant must first be convicted of a crime. Thus, restitution orders do not survive defendants who have died during the pendency of their appeal in the United States Court of Appeals. United States v. Logal, 106 F.3d 1547, 1552 (11th Cir. 1997).
Section 5 — 5—6 of the Unified Code of Corrections similarly requires that before a court can impose a restitution order, the defendant must first be convicted of a crime. 730 ILCS 5/5 — 5—6 (West 1996). If, as suggested by the dissent, all defendants’ convictions were to be voided ab initio, this would necessarily result in the voiding of restitution orders. This result conflicts with both the Act and the constitutional amendment. This is one more reason that the convictions of defendants who die while their appeal is pending must not be voided ab initio.
Further, defendants Wallace and Dye both committed suicide before their appeals were decided. The rationale for voiding a defendant’s conviction ab initio is that “death has deprived the accused of his right to appeal.” United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977). In Wallace and Dye’s cases, the accused deprived themselves of that right by their own hand. As pointed out by Justice Cahill in his dissent in Logal, this situation is more analogous to the scenario in which the appellant in a criminal case becomes a fugitive; in such a case, his appeal is lost. Waiver is defined as the intentional relinquishment of a known right. When convicted defendants intentionally take their own lives they have waived their right to appeal as well as their right to life. They should not be rewarded by vacating their convictions.
Finally, I believe that if our supreme court or the state legislature does consider this issue, any relief granted to deceased defendants should be limited to those whose convictions were on appeal as a matter of right.