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National Crime Victim Law Institute

Payton v. State, 266 So. 3d 630 (Miss. 2019)

May 16, 2019

Defendant, convicted of rape and kidnapping, died before his appeal brief was due and his appointed counsel moved for abatement ab initio to void the entire criminal proceeding.  When considering the motion, the court sought supplemental briefing to address, inter alia, the ramifications of the state’s constitutional and statutory victims’ rights laws on Gollott v. State, 646 So. 2d 1297 (Miss. 1994), a case in which the state supreme court had upheld the doctrine of abatement ab initio.  In addressing this question, the court noted that Mississippi had adopted its constitutional and statutory victims’ rights provisions after Gollott was decided.  Upon reviewing the history of these provisions, the court observed that the victims’ rights laws formally recognized crime victims and afforded them substantial rights within the criminal justice process, including “the right to be provided information by law enforcement, the right to confer with the prosecuting attorney, the right to receive a transcript of the proceedings, the right to be present throughout all proceedings, and the right to participate during any entry of a plea of guilty, sentencing or restitution proceeding.”  The court went on to recognize that “[i]n the decades since Gollott departed from established precedent …  [t]he landscape has changed to protect victims from being traumatized again.”  The court then looked to other jurisdictions for guidance.  As the court noted, the Alaska Supreme Court had addressed similar concerns in 2011, when it considered the doctrine of abatement ab initio in light of that state’s comprehensive victims’ rights laws.  Ultimately, the Alaska court rejected the doctrine as contrary to victims’ legal rights.  The court noted that this rejection follows a trend—states such as Alabama, Idaho, Montana, Washington, Colorado, Nevada, and Maryland had already rejected abatement ab initio due to victim-based concerns.  After reviewing the court decisions from other jurisdictions, the Mississippi Supreme Court concluded that “[b]ecause of the increased recognition of crime victims in both our Constitution and statutory law, we find that departure from the abatement ab initio doctrine is necessary to avoid the perpetuation of pernicious error… .   The abatement ab initio doctrine tramples upon victims’ rights by denying victims ‘fairness, respect and dignity.’  Moreover, we find that the policies undergirding stare decisis—consistency and definiteness in the law—are not served by continued application of the abatement ab initio doctrine.”  Ultimately, the court followed Alaska, adopting an approach that “strikes a balance between the rights of the victim with the rights of the accused.”  Specifically, the court overruled Gollott and held that, if a criminal defendant dies while the defendant’s appeal is pending, the conviction is not abated and the appeal is dismissed as moot, unless the defendant’s estate or personal representative substitutes in for the defendant and elects to continue the appeal.  The court reasoned that “[b]ecause our Constitution balances the rights of the accused with the rights of the victim, we—as guardians of the Constitution—can do no less.  [Defendant] has been accorded his constitutional rights; [the victim] shall be accorded hers.”  Recognizing that the abatement ab initio doctrine originated, in part, to avoid financially punishing a defendant’s family, the court emphasized that, although it “decline[d] to abate a deceased appellant’s criminal conviction ab initio, [it] ‘d[id] not preclude courts from abating financial penalties still owed to the county or State, as opposed to restitution owed to victims, where the death of a defendant pending an appeal creates a risk of unfairly burdening the defendant’s heirs.’”  Because neither the estate nor a personal representative of defendant moved for substitution in this case, the court dismissed defendant’s appeal as moot and left his conviction intact.