                                                   129 Nev., Advance Opinion 53
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                RONNIE DANELLE BRASS,                                 No. 56146
                Appellant,
                  vs.
                THE STATE OF NEVADA,
                                                                                FILED
                Respondent.                                                     JUL 2 2013
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                            Motion for abatement of conviction.
                            Motion denied; remanded.

                David M. Schieck, Special Public Defender, and JoNell Thomas, Deputy
                Special Public Defender, Clark County,
                for Appellant.

                Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                Wolfson, District Attorney, and David L. Stanton and Nancy A. Becker,
                Deputy District Attorneys, Clark County,
                for Respondent.




                BEFORE THE COURT EN BANC.

                                                OPINION


                By the Court, DOUGLAS, J.:
                            Ronnie Brass was convicted of conspiracy to commit
                kidnapping and murder, first-degree kidnapping, and first-degree murder
                with the use of a deadly weapon. Brass timely appealed, but he died
                before his appeal was decided. Brass's attorney filed a suggestion of death



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and a motion for abatement—arguing that this court should abate the
conviction and remand the case to the district court with instructions to
dismiss the charging document. However, no party has been properly
substituted as Brass's personal representative.
            We consider whether an attorney may file a substantive
motion on a deceased client's behalf in a criminal case when a personal
representative has not been substituted as a party to the appeal. We
determine that an attorney lacks authority to act on the deceased client's
behalf in those circumstances; thus, we deny counsel's motion for
abatement. Further, we conclude that if a party dies pending a review of
his appeal, the appeal will be dismissed unless the decedent's personal
representative is substituted in as a party to the appeal within 90 days of
the decedent's death.
                              DISCUSSION
            Brass's counsel raises a novel issue regarding the appropriate
remedy when a criminal defendant dies while his appeal from a judgment
of conviction is pending. There are three possible approaches in that
situation: (1) abatement of the judgment ab initio, (2) no abatement and
the appeal may be prosecuted, and (3) no abatement and the appeal may
not be prosecuted. Abatement of State Criminal Cases by Accused's Death
Pending Appeal of Conviction—Modern Cases, 80 A.L.R. 4th 189 (1990).
But we decline to consider the issue at this time based on our conclusion
that the motion for abatement is not properly before this court.
            Generally, counsel cannot act on a deceased client's behalf.
See Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985) (citing
Restatement (Second) of Agency § 120(1) (1958)); United States v. Chin,
848 F.2d 55, 57 (4th Cir. 1988). Rather, only a properly substituted



                                      2
                personal representative of the deceased party may bring a motion on the
                decedent's behalf. 1 NRAP 43(a)(1) governs the substitution of parties
                where a party has died while an appeal is pending:
                            If a party dies. . . while [an appeal] is pending in
                            the [Nevada] Supreme Court, the decedent's
                            personal representative may be substituted as a
                            party on motion filed by the representative or by
                            any party. . . . A party's motion shall be served on
                            the representative in accordance with Rule 25. If
                            the decedent has no representative, any party may
                            suggest the death on the record, and the court may
                            then direct appropriate proceedings.
                As this court observed in Walker v. Burkham, "[u]pon the death of a
                party. . . the [action] cannot proceed until someone is substituted for the
                decedent. . . ." 68 Nev. 250, 253-54, 229 P.2d 158, 160 (1951) (interpreting
                former Supreme Court Rule 9, a precursor to NRAP 43).
                            It has been almost one year since counsel suggested Brass's
                death upon the record. NRCP 25(a)(1), like NRAP 43(a)(1), allows a
                personal representative to substitute for a deceased party; however, NRCP
                25(a)(1) establishes a limitation on the time for filing a motion for
                substitution. Under NRCP 25(a)(1), a substitution motion must be filed
                within 90 days of the decedent's death being suggested upon the record,




                       'If a party to an action dies while the action is pending before any
                court, NRS 7.075(1) requires the attorney who represented the decedent in
                the pending action to "file a notice of death and a motion for substitution
                of a party with the court" within 90 days of the person's death.



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otherwise, "the action shall be dismissed as to the deceased party." 2 An
unlimited time frame for substitution under NRAP 43 is inconsistent with
Nevada's interest in the finality of judgments. Consistent with these
interests, a motion under NRAP 43 must be filed within a reasonable time
after the decedent's death has been suggested on the record. Given the
similarities between NRCP 25(a) and NRAP 43(a)(1), we conclude that the
time limit set forth in NRCP 25(a)(1) sets a reasonable limit on
substitution motions based on a party's death. We now clarify that when a
criminal defendant dies after a notice of appeal has been filed, a personal
representative must be substituted for the decedent within 90 days of his
death being suggested upon the record; otherwise, this court will dismiss
the appeal and the decedent's conviction will stand.
             Here, this court's process caused the delay in filing the motion
for substitution. So, in this instance only, we extend the time for filing the
substitution motion until 90 days after this opinion is filed. Further, we
determine the substitution motion must be filed with the district court
because the determination of a proposed personal representative's
eligibility may involve fact-finding. We are not a fact-finding court; thus,
the district court is best suited to determine who can substitute for the
deceased appellant. See Wade v. State, 115 Nev. 290, 294, 986 P.2d 438,
441 (1999) (citing Zugel v. Miller, 99 Nev. 100, 101, 659 P.2d 296, 297
(1983)).




      2 We  recognize that, by its terms, NRCP 25(a) only applies in civil
cases and that this is a criminal appeal. Nonetheless, criminal judgments
carry civil consequences. Also, the court system's need for party input and
timely adjudication is no less in criminal than in civil cases.



                                      4
                              Accordingly, we allow 90 days from the date of this opinion for
                the limited purposes of determining Brass's proper personal
                representative and for the representative to file a motion for substitution
                with this court, pursuant to NRAP 43. If no personal representative is
                substituted within the allotted time, we will dismiss the proceedings on
                appeal.


                                                                                     J.
                                                      Douglas

                We concur:




                Pickering
                          Ple/64              , C.J.




                                                 J.
                GiblgOns


                                                 J.
                Hardesty


                   baaiot
                                                 J.
                Parraguirre


                                                 J.



                                                 J.
                Saitta


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