97-361
No. 97-361
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 67
______________
STATE OF MONTANA, )
)
Plaintiff and Respondent,)
) OPINION
v. ) AND
) ORDER
F. JOE HOLLAND, )
)
Defendant and Appellant. )
¶1 F. Joe Holland appeals from his conviction upon
pleas of guilty to criminal syndicalism by accountability
and threats and other improper influence in official and
political matter, in proceedings held before the Twenty-First
Judicial District Court, Ravalli County. The
appeal has been briefed and has been set for oral
argument on April 21, 1998.
¶2 On March 10, 1998, the
State of Montana moved to dismiss this appeal following
the March 5, 1998 death of F. Joe Holland. The State has
filed with the Clerk of this Court a certified copy of
the certificate of death for F. Joe Holland. Holland's
counsel has filed a response opposing the motion to
dismiss.
¶3 This Court has consistently held that the death of
an accused pending the appeal of a judgment of conviction
abates the appeal. State v. Cripps (1978), 177 Mont.
410, 412-13, 582 P.2d 312, 314; State v. Clark-Kotarski
(1971), 156 Mont. 527, 528, 486 P.2d 876, 876-77; State
v. Koble (1955), 129 Mont. 605, 605-06, 285 P.2d 837,
838; State v. Hale (1954), 128 Mont. 116, 117, 270 P.2d
993, 994; State v. Pichette (1951), 125 Mont. 327, 329,
237 P.2d 1076, 1077; State v. Lawrence (1949), 122 Mont.
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277, 278, 201 P.2d 756. The Court has reasoned that the
purpose of criminal proceedings is to punish the accused,
and the action must therefore necessarily abate upon the
accused's death. Pichette, 125 Mont. at 329, 237 P.2d at
1077.
¶4 The majority rule is that when a criminal defendant
dies while his or her appeal is pending, the prosecution
abates from the inception of the case. Tim A. Thomas,
J.D., Annotation, Abatement of State Criminal Case by
Accused's Death Pending Appeal of Conviction--Modern
Cases, 80 A.L.R.4th 189 (1990). The annotation cites
cases so ruling from twenty-seven states, plus the
District of Columbia. In seven states--Hawaii, Kansas,
New Jersey, New Mexico, Pennsylvania, Utah, and
Wisconsin--courts have held or recognized that the death
of a criminal defendant pending appeal did not abate the
case from the beginning, and that the appeal may be
prosecuted notwithstanding the death of the defendant.
Montana joins New Hampshire, Oregon, Pennsylvania, South
Carolina, and Texas in the list of jurisdictions which
have held or recognized that when a defendant dies
pending appeal of a criminal conviction, the appeal
abates. While this Court has never affirmatively stated
that abatement applies only to a then-pending appeal,
none of the Montana cases cited above have made reference
to abating the underlying criminal proceedings.
¶5 Counsel for Holland urges the Court to abandon its
precedent and adopt the reasoning of the minority of
jurisdictions which allow an appeal to be decided on the
merits after the death of a criminal defendant, citing,
inter alia, State v. Salazar (N.M. 1997), 945 P.2d 996.
Counsel asserts that resolving the issues in this appeal
would be in the best interests of society and the justice
system. Counsel maintains that Holland pled guilty to
the charges against him for the specific purpose of
testing the constitutionality of the Montana laws which
he was charged with violating.
¶6 Section 37-61-401(2), MCA, provides:
The death of a party to an action or
proceeding does not revoke the authority of
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his attorney of record in said action or
proceeding, but the authority of the attorney
is continued in all respects the same and with
like effect as it was prior to the death of
such party until such attorney shall withdraw
his appearance in said action or proceeding or
some other attorney shall be substituted for
him or his authority shall be otherwise terminated
and entry thereof made to appear in the
record of such action or proceeding.
In a criminal case, however, no case or controversy
remains upon the death of the defendant. If the judgment
of the trial court sentencing Holland to prison were
affirmed, it would be impossible to execute it. If it
were reversed, Holland would not be available for trial
on the charges to which he pled guilty. "This Court does
not issue advisory opinions." State ex rel. Fletcher v.
Dist. Court (1993), 260 Mont. 410, 419, 859 P.2d 992,
997.
¶7 Holland's counsel points out that Holland's sentence
included two $15,000 fines, which he contends could be
enforced against Holland's estate, although the State
responds that it is uncertain whether it will seek to
collect the fines under the circumstances. Nothing has
been filed by anyone claiming to represent Holland's
estate asking that counsel be allowed to pursue this
appeal on behalf of the estate. Furthermore, while the
Montana Rules of Appellate Procedure provide for the
substitution of a personal representative for a deceased
party in an appeal of a civil case, the rules do not so
provide in an appeal of a criminal case. See Rule 37,
M.R.App.P.
¶8 We conclude that counsel for Holland has set forth
no good reason why this Court should reverse its long-standing
rule that a criminal appeal is abated when the
appellant dies during its pendency. It further appears to us
that the best reasoning is represented by the majority of
jurisdictions which hold that a criminal proceeding is abated
in its entirety upon the death of the criminal defendant.
The rationale, as set forth by the Supreme Court of
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Arizona, is that the interests of the state in protecting
society have been satisfied, the imposition of punishment
is impossible, and further collection of fines or
forfeiture would result in punishing innocent third
parties. State v. Griffin (Ariz. 1979), 592 P.2d 372,
373. We now join the majority of jurisdictions in
holding that prosecution of a criminal case abates in its
entirety, including fines, upon the death of the criminal
defendant. We hereby clarify Cripps, Clark-Kotarski,
Koble, Hale, Pichette, and Lawrence to the extent to
which they may appear to be inconsistent with our holding
herein.
¶9 IT IS HEREBY ORDERED that the order setting this
case for oral argument is vacated, and the appeal is
DISMISSED. The Clerk of Court is instructed to return
the record to the District Court for further proceedings
consistent with this Opinion and Order.
¶10 DATED this 24th day of March, 1998.
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
Justices W. William Leaphart and Terry N. Trieweiler
would order a response from the State of Montana in
regard to abating the fines.
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