U.S. v. Ribaudo, 62 M.J. 286

Trial Stages: Appeals: Generally

1. an appellant is entitled to an appeal of right and his death prior to completion of that appeal generally entitles him to abatement of the proceedings ab initio
2. once a court of criminal appeals issues its decision under Article 66(c), UCMJ, an appellant has received his appeal of right and is no longer entitled to application of the policy of abatement ab initio, even if the period to request reconsideration of that decision has not expired; discretionary authority to reconsider a decision does not alter the conclusion that an appellant’s appeal of right is complete when the lower court issues its decision
3. in the event a court of criminal appeals grants reconsideration and withdraws its initial decision or opinion, an appellant’s appeal of right cannot be said to be complete until a new decision or opinion is issued; similarly, where a court of criminal appeals decides to consider a case en banc, Article 66, UCMJ, review cannot be considered complete until the decision of the court en banc is issued; however, there is no basis in law to alter the policy determination of a court of criminal appeals that an appellant who dies after a decision under Article 66(c), UCMJ, has been issued is not entitled to abatement of the proceedings against him ab initio; to the extent that the CAAF decisions in United States v. Roettger, 17 M.J. 453 (C.M.A. 1984) and United States v. Lange, 18 M.J. 162 (C.M.A. 1984) are inconsistent with this decision, those cases are overruled
4. should an appellant die prior to an opinion on reconsideration or en banc by a court of criminal appeals, that appellant would have died prior to completion of his appeal of right and therefore be entitled to abatement ab initio; however, should a court of criminal appeals deny a motion for reconsideration or a hearing en banc, the initial decision or opinion of the court remains valid for purposes of abatement ab initio
5. in light of the fact that the Judge Advocates General have not acted to establish a uniform rule for the courts of criminal appeals, and to ensure consistency among the service courts of criminal appeals, the CAAF extends the following rule to each service court: where an appellant dies after a court of criminal appeals’ decision affirming the findings and sentence under Article 66(c), UCMJ, the appellant is not entitled to abatement ab initio

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. once a court of criminal appeals issues its decision under Article 66(c), UCMJ, an appellant has received his appeal of right and is no longer entitled to application of the policy of abatement ab initio, even if the period to request reconsideration of that decision has not expired; discretionary authority to reconsider a decision does not alter the conclusion that an appellant’s appeal of right is complete when the lower court issues its decision
2. review by a court of criminal appeals pursuant to Article 66, UCMJ, is an appeal of right; the general rule favors abatement ab initio pending an appeal of right; it is the longstanding and unanimous view of the lower federal courts that the death of an appellant during the pendency of his appeal of right from a criminal conviction abates the entire course of the proceedings brought against him; it is not until that appeal of right is complete that the interests of justice have been served
3. in the event a court of criminal appeals grants reconsideration and withdraws its initial decision or opinion, an appellant’s appeal of right cannot be said to be complete until a new decision or opinion is issued; similarly, where a court of criminal appeals decides to consider a case en banc, Article 66, UCMJ, review cannot be considered complete until the decision of the court en banc is issued; however, there is no basis in law to alter the policy determination of a court of criminal appeals that an appellant who dies after a decision under Article 66(c), UCMJ, has been issued is not entitled to abatement of the proceedings against him ab initio; to the extent that the CAAF decisions in United States v. Roettger, 17 M.J. 453 (C.M.A. 1984) and United States v. Lange, 18 M.J. 162 (C.M.A. 1984) are inconsistent with this decision, those cases are overruled
4. should an appellant die prior to an opinion on reconsideration or en banc by a court of criminal appeals, that appellant would have died prior to completion of his appeal of right and therefore be entitled to abatement ab initio; however, should a court of criminal appeals deny a motion for reconsideration or a hearing en banc, the initial decision or opinion of the court remains valid for purposes of abatement ab initio
5. in light of the fact that the Judge Advocates General have not acted to establish a uniform rule for the courts of criminal appeals, and to ensure consistency among the service courts of criminal appeals, the CAAF extends the following rule to each service court: where an appellant dies after a court of criminal appeals’ decision affirming the findings and sentence under Article 66(c), UCMJ, the appellant is not entitled to abatement ab initio

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF adheres to its policy of not abating proceedings ab initio for cases before the court under Article 67(a)(3), UCMJ, when an appellant dies; the CAAF exercises discretion over its petition docket and review under Article 67(a)(3), UCMJ, is discretionary with the court
2. the CAAF has left to the courts of criminal appeals or the Judge Advocates General to establish the parameters of a policy of abatement in the event that an appellant dies pending review at a court of criminal appeals
3. in light of the fact that the Judge Advocates General have not acted to establish a uniform rule for the courts of criminal appeals, and to ensure consistency among the service courts of criminal appeals, the CAAF extends the following rule to each service court: where an appellant dies after a court of criminal appeals’ decision affirming the findings and sentence under Article 66(c), UCMJ, the appellant is not entitled to abatement ab initio