THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Palik v. Kosrae ,
6 FSM Intrm. 362 (App. 1994)

[6 FSM Intrm. 362]

PALIK B. PALIK,
Appellant,

vs.

STATE OF KOSRAE,
Appellee.

APPEAL CASE NO. K2-1992

OPINION

Hearing:  February 2, 1994
Decided:  March 24, 1994

BEFORE:
     Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Appellant:     Robert Diemer, Esq.
                                    Office of the Public Defender
                                    P.O. Box 245
                                    Tofol, Kosrae FM 96944

For the Appellee:      Timothy Stumpff, Esq.
                                    Assistant Attorney General
                                    Office of the Kosrae Attorney General
                                    P.O. Box AG
                                    Tofol, Kosrae FM 96944

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HEADNOTES
Common Law; Criminal Law and Procedure ) Dismissal
     Under the common law the death of a criminal appellant pending appeal abates the proceedings ab initio ) not only the appeal but all proceedings from the inception of the prosecution, thus requiring the appellate court to dismiss the appeal, and remand the case to the trial court to vacate the judgment and dismiss the information.  Palik v. Kosrae, 6 FSM Intrm. 362, 364 (App. 1994).

Criminal Law and Procedure ) Dismissal
     When a criminal defendant dies while his conviction is on appeal and where there was no

[6 FSM Intrm. 363]

discrete victim and where there are no collateral matters impinging upon the case requiring further court proceedings it is appropriate under the facts of the case to abate the proceedings ab initio and vacate the conviction.  Palik v. Kosrae, 6 FSM Intrm. 362, 364 (App. 1994).

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COURT'S OPINION
MARTIN YINUG, Associate Justice:
 
I.  INTRODUCTION
     The deceased appellant, Palik B. Palik, through counsel moves the Court under FSM Appellate Rules 27 and 43(a) to adopt and apply the common law rule of abatement ab initio by ordering dismissal of his criminal appeal and remanding the case to the Kosrae State Court to vacate the judgment of conviction and dismiss the charging information against him.  The appellee, Kosrae State, opposes the adoption in Kosrae of the common law rule of abatement ab initio to resolve a pending criminal appeal in the face of appellant's death.  Kosrae State, however, does not object to having this appeal dismissed and the conviction vacated.  We grant the motion.

II.  ISSUE AND HOLDING
     The sole issue on this appeal is whether the facts of this case warrant dismissal of this appeal and a remand to the Kosrae State Court to vacate the judgment of conviction and dismiss the information against the deceased appellant.  We hold that the relief sought ) dismissal of the appeal and remand order to Kosrae State court ) is appropriate and justified by the facts.

III.  FACTS
     The pertinent facts involved in this case are not in dispute.  Kosrae State filed an Information on January 2, 1992, charging Palik B. Palik with Obstructing Justice in violation of Kosrae State Code, section 13.611.  Palik pled guilty to the charge.  His sentence was to spend weekends, holidays, and non-school days for five months in the Kosrae State Jail.  On March 5, 1992, Palik appealed to this Court the judgment of conviction entered against him on February 4, 1992, by the Kosrae State Court.

     Bingham Palik is the surviving father of Palik B. Palik.  He states in his affidavit that his son, Palik B. Palik, died during the night of December 24-25, 1992, with no land and no personal representative for his estate.  The estate consists of the decedent's personal items only.  Bingham Palik further states that he has no interest in pursuing the appeal on behalf of his dead son.  He wants the matter to be closed.

IV.  DISCUSSION
     How to deal with the issue of the death of a criminal appellant pending his appeal is a question of first impression in the FSM.  The procedures for proper completion of a criminal appeal when the appellant is dead and the controversy is live have never been directly addressed either by court decisions or statutes of Kosrae or the FSM.  Our rules of court offer no help at all on this issue.  FSM Appellate Rule 43(a) speaks only of "proceedings . . . as the appellate division may direct" where a deceased party with no personal representative has an appeal pending.

[6 FSM Intrm. 364]

     The appellant urges this Court to adopt the common law rule that the death of a criminal appellant pending appeal abates the proceedings ab initio.  He has cited a number of United States cases, both Federal and State, that have addressed the question of the effect of a criminal appellant's death on the proceedings.  The courts in those cases have adopted the blanket rule that death pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution, from its inception.  Their application of the abatement ab initio rule results in dismissal of the appeal and remanding the case to the trial court to vacate the judgment and dismiss the information.

     In support of adopting the rule of abatement ab initio, the appellant argues that the rule promotes the interests of justice, judicial economy, and the family and estate of the deceased.  In response, Kosrae State urges us to adopt a case-by-case approach to a case like this, where an appeal is taken from a criminal conviction and death deprives the accused of an appellate decision. In this case, Kosrae State does not object to having the conviction vacated since there is no discrete victim involved, no restitution ordered, no pending civil case or a civil judgment predicated upon the criminal conviction of Palik. Kosrae State enumerates to us circumstances where it is appropriate for the conviction to remain on the record.

     Without getting embroiled in the policy reasons for or against adopting the common law rule of abatement ab initio in Kosrae, we note only that the relief requested by the appellant is justified by the facts of this case.  We only decide the issues necessary to resolve the dispute before us.  Innocenti v. Wainit, 2 FSM Intrm. 173, 179 (App. 1986).  The only authorities cited by the appellant are U.S. Federal and State court decisions that have considered and applied the rule of abatement ab initio.  The conclusion we draw from the reasoning in those decisions is that the rule to abate ab initio affords the appropriate relief in the case before us.  We know of no circumstances other than the facts of record in this case that prompted Kosrae State to consent to the relief requested by appellant Palik.  We say this ever mindful of the important role prosecutorial discretion plays in criminal adjudication.  We find the circumstances here sufficient to grant the relief sought by the appellant.

     We do not decide whether certain types of cases should abate and certain types should not abate.  We decide only that abatement ab initio should be applied to the facts of this case.  Kosrae State's interest in punishing Palik for his conviction of obstructing justice becomes moot by his death.  Likewise, Kosrae State's interest in Palik's prosecution have been erased by his death as well as the lack of collateral matters impinging upon the case requiring further court proceedings.  The death of Palik has also made it impossible to proceed with his pending criminal appeal for two reasons.  His surviving father is unwilling and has no incentive to advocate his positions or pursue the appeal.  Also his estate has no personal representative to act on his behalf. More importantly, Kosrae State has consented to abating this case ab initio largely because of the absence of other collateral matters requiring judicial inquiry.

V.  CONCLUSION
     Appellant Palik's motion to abate this case ab initio is granted.  Because the relief requested is in two parts, the appeal is dismissed under FSM Appellate Rule 27(c) and the case is remanded to the Kosrae State Court to vacate the judgment of conviction and dismiss the information against appellant Palik B. Palik.

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