Kearns v. State

536 So. 2d 1187 (1989)

Jack Harlow KEARNS, Appellant,
v.
STATE of Florida, Appellee.

No. 87-703.

District Court of Appeal of Florida, Fifth District.

January 12, 1989.

James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Paula C. Coffman, Asst. Atty. Gen., Daytona Beach, for appellee.

ON MOTION FOR REHEARING

ORFINGER, Judge.

The order previously entered herein dismissing this appeal because of the death of appellant is withdrawn and the following opinion is substituted in its place.

Appellant was convicted of manslaughter in the Circuit Court of Brevard County. Pending direct (albeit a permitted belated) appeal from that conviction, the appellant died. Under these circumstances, permanent abatement, ab initio, of the prosecution, both in this court and the trial court is the appropriate procedure to follow. See Parker v. State, 530 So. 2d 1084 (Fla. 3d DCA 1988); Cruz v. State, 137 So. 2d 254 (Fla. 2d DCA 1962); Bagley v. State, 122 So. 2d 789 (Fla. 1st DCA 1960).

ORDERED ACCORDINGLY.

SHARP, C.J., and DAUKSCH, J., concur.