Opinion
Case No. 3:02-cr-52-J-12TEM.
September 3, 2008
ORDER
The Court, pursuant to 18 U.S.C. § 3582(c)(2), entered a sua sponte Order (Doc. 106) appointing the Office of the Public Defendant to seek a reduction of the Defendant's sentence in light of the retroactive crack cocaine amendment to the Sentencing Guidelines. On July 16, 2008, counsel for the Defendant filed Motion to Dismiss Based on Suggestion of Death (Doc. 110), asking the Court to dismiss the entire case against the Defendant due to his death on July 14, 2008. The United States filed a response (Doc. 114) opposing dismissal of the entire case.
It is the position of the United States that the appropriate action is to declare the Court's Order (Doc. 106) moot, rather than to dismiss the entire case. The Court agrees. The rule of abatement of criminal proceedings upon the death of a defendant would apply in this case only if the direct appeal of his criminal conviction was pending. See United States v. Williams, No. 5:03cr59/MCR, 2006 WL 2588743, (N.D. Fla. September 7, 2006) and cases cited therein. The Defendant's criminal conviction in this case was final long ago, and the Court has no authority to expand the rule of abatement to this post-conviction proceeding relating to the Defendant's eligibility for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Accordingly, it is ORDERED AND ADJUDGED:
1. That the Defendant's Motion to Dismiss Based on Suggestion of Death (Doc. 110) is denied; and
2. That the Court's Order (Doc. 106) filed May 14, 2008, is moot and no further proceedings are required in this matter.