A Defendant’s Death While His Conviction is on Appeal as of Right Requires Vacating that Conviction

State v. Burrell, Minn.S.Ct., 10/2/2013.  This case presents the question: If a defendant dies while he is appealing his conviction does that conviction remain on the books, or does death wipe out the conviction?  In an unpublished Opinion the court of appeals said that the conviction stays on the books with no further opportunity to challenge that conviction.  Four members of the supreme court, lead by Chief Justice Gildea, say, no, Mr. Burrell’s death during the pendency of a direct appeal as of right erases the conviction.  (Justices Wright and Lillehaug took no part.)  Indeed, every federal court of appeals that has considered the question has come to the same conclusion.  Most of the states have also said the same thing.

Not good enough for Justice Dietzen who dissented.  He says that death is a cop out.  If the deceased defendant’s survivors feel all that strongly that the trial court conviction came about through reversible error, then substitute one of them in as the surrogate defendant and press on with the appeal.

The majority does say that a restitution award survives against the estate of the deceased defendant.