June 17, 2011

Colorado Court of Appeals criminal law decision 6-9-11


People v. Daly            Doctrine of abatement ab initio and Restitution
Facts: A jury convicted Mr. Daly of stalking, and the trial court imposed restitution. Mr. Daly appealed the conviction, but during the pendency of the appeal, unfortunately, Mr. Daly died.
Issues: 1) Does the doctrine of abatement ab initio still exist in Colorado, and 2) if the doctrine does exist, does that also extinguish the restitution order?
Held: Yes, the doctrine of abatement ab initio survives in Colorado, but the restitution order does not get dismissed with the rest of the case.
Reasoning: Back in 1904 the Colorado Supreme Court found that if a person dies while their case is on direct appeal, then the case should be dismissed under a doctrine called abatement ab initio. Overland Cotton Mill Co. v. People, 32 Colo. 263, 265, 75 P. 924, 925 (1904). Under this doctrine, the Federal District Court dismissed the case against Kenneth Lay, he of ENRON fame, after a jury convicted him. Further, unlike U.S. v. Lay, where the trial court had yet to issue an order granting restitution, the restitution in place at the time of Mr. Daly’s case survives. The CofA found a split of authority, and after citing Victim’s Rights, held the restitution order survives even if the case does not. Two interesting facts may separate this case from another that may come up: Unlike in U.S. v. Lay, the trial court granted restitution order and two, imposed it as part of a civil judgment. 

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