specially concurring in part and dissenting in part:
The bell has tolled for this John Dunn and death has become the final judgment for all of these defendants.
Generally, courts have taken the position that the aim of the criminal justice system is the protection of the public and the punishment of the guilty. Upon the death of a defendant, those goals are unnecessary on the one hand and impossible on the other.
The majority acknowledges that the Illinois Supreme Court has spoken on this issue in a direct and unequivocal manner in People v. Mazzone, 74 Ill. 2d 44 (1978). The Mazzone court recognized that “the death of a defendant pending an appeal *** abates not only the appeal but all proceedings, ab initio.” Mazzone, 74 Ill. 2d at 47. The Mazzone court could have easily taken a different tack, since it was faced with only a fine levied as a result of the criminal conviction and while the defendant could not have served any time, his estate could have been held liable for the payment of the fine.
We are an intermediate court of review and are not afforded the luxury to ignore the holdings of our highest court or, in the case of the majority, distinguish its holdings out of existence. In fact, this court has previously dismissed two appeals relating to Will Robinson, the same defendant in the instant case, by allowing defense counsel’s motions to abate proceedings as void ab initio. On May 12, 1997, the first division of this court issued an order on the appeal of defendant Robinson in case No. 1 — 95—3922 and its order stated “Counsel’s Motion to Abate Proceedings ab initio due to Appellant’s death is granted.” In turn, on May 14, 1997, the third division of this court issued an order on the appeal of defendant Robinson in case No. 1 — 96—3016 and its order stated “the defendant’s motion to abate proceedings as void ab initio is allowed.”
The majority also acknowledges that the great majority of jurisdictions abate the proceedings ab initio.
To distinguish Mazzone, the majority attempts to employ the Rights of Crime Victims and Witnesses Act (Act) (725 ILCS 120/1 et seq. (West 1996)) and the amendment to the Illinois Constitution which raises the Act to constitutional dignity (Ill. Const. 1970, art. I, § 8.1). None of the 10 specific “rights” provided in the Act and the amendment come even close to overturning Mazzone. The majority equates death and abatement with “fairness and respect for their dignity” and suggests that it is an affront to the victims’ dignity for convictions to be “vacated as a matter of routine procedure.” Can the death of a defendant be cast as a “routine procedure”?
Moreover, where the Act and the constitutional amendment are used as the basis for the majority opinion, strange results occur! For example, where a defendant, while driving under the influence of alcohol (DUI), has injured another in an auto accident, his conviction for DUI would not be vacated ab initio, although a defendant convicted of multiple burglaries would be entitled to have his convictions vacated in the event of his death.
Finally, the majority chooses to ignore the legislative debate on the resolution authorizing the constitutional amendment. During the Senate debate on the resolution, the principal sponsor of the resolution stated: “I believe that the individual’s entire appeal rights are not addressed in here, or the time frame of doing so is not addressed in here, in terms of rushing it or eliminating any of the rights of appeals of the accused — or in this case, a convicted person.” 87th Ill. Gen. Assem., Senate Proceedings, April 30, 1992, at 16 (statements of Senator Leverenz).
The Act provides that “[njothing in this Act shall create a basis for vacating a conviction or a ground for appellate relief in any criminal case.” 725 ILCS 120/9 (West 1996). Employing logic which is pure casuistry, the majority ignores the implications of this statement by suggesting that since the State is not seeking any “relief,” the prohibition set out in the Act does not apply. This reasoning is certainly disingenuous considering that the language of the Act is the only thing that the majority uses to distinguish Mazzone.
As men and women, we must have great compassion for victims of crime and their loved ones. As judges, however, we must also be mindful of the precedents of higher courts and the rights of the accused. Additionally, the rights of third parties may have intervened. For example, the heirs or legatees of a person who dies after being convicted of murdering a testator or ancestor would lose rights after a conviction without the right of appeal. Some states have made provision for such an occurrence by allowing the appeal to at least continue; however, in light of Mazzone, that is for the legislature to develop a plan for such a change in our laws. The legislature would also have to consider the rights of a surviving spouse to his or her convicted spouse’s public pension where the conviction was predicated upon the commission of a crime relating to the deceased’s public employment. Moreover, the family of the deceased may have legitimate concerns about the reputation of the deceased.
With respect to the concurring opinion, the two Illinois cases cited do not provide any analysis that would impair the validity of Mazzone. The Hovanec case makes a passing reference to the dismissal of a co-defendant and specifically cites Mazzone as the authority for the dismissal of the appeal but does not mention whether or not, in dismissing the appeal, the conviction was abated. As to Milner, the concurring opinion correctly discloses that this was an appeal by the State rather than the defendant so that no impairment of Mazzone is reflected in this dismissal of appeal or in allowing the appellate court decision to stand. The notion of whether the act of suicide changes the effect of Mazzone because it is a “waiver” or an escape is too metaphysical to address in this dissent.
I agree, however, with the concurring opinion that the abatement ah initio should apply only to those defendants whose convictions were on appeal as a matter of right. I do this in recognition of the fact that efforts at appeals can be as endless or as limited as conceived by legal practitioners or prison librarians. See People v. Heirens, 271 Ill. App. 3d 392, 396-99 (1995) (a three-page list of postconviction proceedings and appeals).
We should not invade the provence of the highest court of our state or the legislative branch of government and should vacate the conviction ab initio. Accordingly, I concur with the Robinson and Golden dispositions and dissent from the Dunn, Wallace and Dye dispositions.