{concurring). I agree the appeal should be dismissed. However, I find myself in a quandary. I believe that when an appellant dies during the pendency of an appeal, the appeal should be dismissed because the appellant is no longer subject to the jurisdiction of the court. However we have recently held that when a defendant dies pending appeal of his conviction, not only is dismissal of the appeal appropriate, but all proceedings in the prosecution from its inception, including the conviction, shall be abated. State v. Krysheski, 119 Wis. 2d 84, 88-89, 349 N.W.2d 729, 732 (Ct. App. 1984). We accord decisions of another panel of our court great deference, especially when the decision is a recent one and the disputed point of law has been thoroughly considered. Therefore, I defer to our decision in Krysheski but suggest our holding should be reexamined.
I recognize that there is impressive authority for the proposition that, at least when a defendant dies pending an appeal of right, all prior proceedings are abated ab initio. However, a review of the cases upon which this line of authority is based reveals they do not support this general proposition. Krysheski, supra, for example, relied on Durham v. United States, 401 U.S. 481, 482-83 (1971), which in turn relied heavily on the analysis of the issue by the Eighth Circuit *371Court of Appeals in Crooker v. United States, 325 F.2d 318 (8th Cir. 1963). It is informative therefore to examine this latter decision.
Crooker, 325 F.2d at 319, holds without qualification that if an appellant dies during the pendency of a criminal appeal, not only must the appeal be dismissed but "the causes have abated.” An examination of the decisions relied on by the Crooker court reveals, however, that many of those decisions involved the assessment of a fine. The abatement rationale was developed because the courts did not believe it was just to punish the defendant’s family for his offense. The Crooker court stated:
A fine is not something to which the United States is entitled by way of compensation or damages, but only as a matter of punishment being thereby meted upon the defendant. "It was imposed as a punishment of the defendant for his offense. If, while he lived, it had been collected, he would have been punished by the deprivation of that amount from his estate; but, upon his death, there is no justice in punishing his family for his offense.” [United States v. Pomeroy, 152 F. 279, 282, (C.C.S.D.N.Y. 1907), rev’d on other grounds, United States v. New York Cent. & H.R.R. Co., 164 F. 324 (2d Cir. 1908).] (Footnote omitted.)
Id. at 321.
The abatement rationale loses its persuasiveness when the failure to abate affects only the defendant. Because we have no clear guidance from the United States Supreme Court, and because the rule which we adopted in Krysheski rests on such shaky precedent, I do not believe we should adopt in criminal appeals a rule that the death of the defendant abates all proceedings ab initio. I believe we should simply *372dismiss the appeal as moot because the defendant is no longer subject to the jurisdiction of the court.
The precedential weight of Durham, 401 U.S. at 483, is suspect for another reason. The United States Supreme Court in Dove v. United States, 423 U.S. 325 (1976), overruled Durham. In Krysheski, 119 Wis. 2d at 88 n. 5, 349 N.W.2d at 732, we agreed with the Seventh Circuit Court of Appeals in United States v. Moehlenkamp, 557 F.2d 126, 127 (7th Cir. 1977), that Dove overrules Durham only with respect to the appropriate disposition of petitions for certiorari mooted by the petitioner’s death. In Durham, 401 U.S. at 483 n. *, however, the United States Supreme Court stated that: "Since death will prevent any review on the merits, whether the situation is an appeal or certiorari, the distinction between the two would not seem to be important for present purposes.” Thus, it is not clear whether in Dove, supra, the Supreme Court intended to preserve any of its holding in Durham. As the circuit court of appeals stated in Moehlenkamp, 557 F.2d at 127: "[I]t is difficult to divine the intentions of the Supreme Court when it says so little ....”
We hold that justice does not require abatement or vacation of a conviction when the defendant himself prevents a review of the merits by suicide. If we base our decision whether to abate a conviction ab initio upon whether the defendant died involuntarily or took his or her own life, we necessarily open the door to an exhaustive examination of the circumstances of death in most such cases. Would we deny to McDonald abatement of his conviction if it were established that at the time of his suicide he lacked the capacity to make a voluntary choice whether to live or die?
*373Rather than involve ourselves in extensive investigation and litigation concerning the voluntariness or involuntariness of the death of an appellant, I believe it is better to adopt 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.