                                    Cite as 2016 Ark. 298


                   SUPREME COURT OF ARKANSAS
                                        No.   CR-16-557

                                                  Opinion Delivered: September   8, 2016
JUAN PEREZ
                                 APPELLANT

V.                                                MOTION TO DISMISS APPEAL AS
                                                  MOOT
STATE OF ARKANSAS
                                   APPELLEE
                                                  MOTION DENIED WITHOUT
                                                  PREJUDICE.




                                         PER CURIAM


        Attorney Phillip McGough was appointed by the Miller County Circuit Court to

 represent appellant Juan Perez in the appeal of a conviction for rape. On June 21, 2016,

 counsel filed a “Motion to Dismiss Appeal as Moot.” In his motion, counsel states that on

 May 27, 2016, he mailed a notice of appeal and designation of record to the Miller County

 Circuit Clerk and to court reporter Tabbetha A. Kopech; that on June 1, 2016, Kopech

 emailed him to inform him that Perez had died; and that on June 7, 2016, Miller County

 Prosecuting Attorney Stephanie Black telephoned him and told him that Perez had died on

 May 4, 2016. Counsel contends that, because Perez has died, this court should dismiss the

 appeal as moot.

        Rule 1(c) of the Arkansas Rules of Appellate Procedure–Criminal states that, “[u]pon

 the death of a defendant, the appeal shall not abate. The appeal shall continue on the relation

 of a representative party as provided in Ark. R. Civ. P. 25(a).” See also Dowdy v. State, 2015
                                    Cite as 2016 Ark. 298

Ark. 35. Subsection (c) was amended in 2004 to permit an appeal to continue following the

death of a defendant. Before the rule was amended,

       no appeal could be taken after the death of a defendant, and any appeal taken
       during a defendant’s life abated upon his death. This situation could create
       collateral consequences to the estate and heirs of a defendant. For example,
       assume that a defendant convicted of homicide is the beneficiary of an
       insurance policy insuring the life of the homicide victim. If the defendant dies
       while the conviction is on appeal, the continuation of the appeal is the only
       way for the defendant’s estate to challenge the conviction. As a party in privity
       with the defendant, the estate would be collaterally estopped from relitigating
       the defendant’s guilt in a subsequent civil proceeding to determine the
       disposition of the insurance proceeds. See Zinger v. Terrell, 336 Ark. 423, 985
       S.W. 2d 737 (1999) (murder conviction bars defendant from relitigating guilt
       in subsequent civil proceeding). Similarly, the judgment of conviction may
       order a defendant to pay a substantial fine or restitution. This potential claim
       against the defendant’s estate could not be contested by the estate if the
       opportunity to challenge the conviction is extinguished by the death of the
       defendant.

Ark. R. App. P.–Crim.1(c) reptr. nn. to 2004 amendment.

       Accordingly, the status of this criminal appeal is now governed by Arkansas

Rule of Civil Procedure 25(a)(1):

       If a party dies and the claim is not thereby extinguished, the Court may order
       substitution of the proper parties. The motion for substitution may be made
       by any party or by the successors or representatives of the deceased party, and
       such substitution may be ordered without notice or upon such notice as the
       Court may require. Unless the motion for substitution is made not later than
       ninety (90) days after the death is suggested upon the record by the service
       upon the parties of a statement of the fact of death, the action may be dismissed
       as to the deceased party.

Ark. R. Civ. P. 25(a)(1).

       Motion denied without prejudice.




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