June 26, 2019

Colorado Court of Appeals: Doctrine of Ab Initio Not Applied to Civil Judgements Created by Restitution Orders as Restitution is Designed to Survive Defendant’s Death

on June 9, 2011.

Restitution—Death of Defendant—Doctrine of Abatement Ab Initio.

Defendant was convicted at trial of a felony and was ordered to pay restitution to the victim; however, he died while his direct appeal was pending. The Court of Appeals raised the issue of whether defendant’s case should be remanded to the trial court to set aside the conviction and dismiss the charges against defendant.

The Attorney General argued that the doctrine of abatement ab initio should be abandoned and not applied to defendant’s conviction because defendant was ordered to pay restitution to the victim of his crime at the sentencing hearing. This presented an issue of first impression in Colorado. The Court concluded that defendant’s criminal conviction should be abated ab initio because he died before his direct appeal was resolved. However, because restitution is designed to survive a defendant’s death, the doctrine of ab initio does not apply to civil judgments created by restitution orders, such as the one here. The motion was granted in part and denied in part, and the appeal was dismissed in part.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 9, 2011, can be found here.

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