*1 ders of the trial court and on whether the
second order altered or merely explained Carr,
the first. As I read it did not estab-
lish one rule for civil appeals and another appeals. for criminal short, I believe that the precedential
effect of West and Cys remains undiluted.
Because appellant did not file a notice of thirty days entry “within after
the ... order from which the
taken,” D.C.App.R. 4-II(a)(l)
added) i.e., thirty within Febru- days after — ary hold, 1982—I would basis of
West and Cys, jurisdic- this court lacks
tion to her appeal.2 entertain HOWELL,
Marquis Appellant, Stetler, D.C., Bradley Washington, S. appellant. Fisher, Atty., John R. Asst. U.S. Harris, Stanley Atty., whom S. Michael District of Columbia Court of Farrell, Mary McLaughlin, W. A. Asst. Attys., D.C., Washington, were on
Argued Sept. En Banc 1982. preargument appellee. memorandum for Decided Jan. 1983. NEWMAN, Before Chief KERN, NEBEKER, MACK, KELLY, FER- BELSON, REN, PRYOR and Judges.
NEWMAN, Judge: Chief rehearing en we consider On this 8,1981, vacat- this court’s order of October ing opinion August follow- reversing appellant’s conviction notification dismissing tunc as by Harvey D.C. v. United A.2d 36 We conclude that App., 385 direct re- appellant when an dies on the merits. jurisdiction, Kern’s 2. Were I to conclude that case and we had join majority’s disposition of would in the *2 1372 conviction,
view his
appeal
point.
of
the
should
reversal endures until
While
judgment
pre-
the
court’s
carries a
trial
dismissed and the entire
of
of
sumption
validity,
very
the
essence
a
initio,
ab
and its
prog-
and overrule
to
presumption
vulnerability
is its
refuta-
eny.
process provides
tion. The
the
appellate
4,
August
1981, panel
On
a
of
court
this
to rebut
losing party
opportunity
with an
reversed
appellant’s
posses-
conviction
able, by
if he is
demon-
presumption,
marijuana
sion of
and remanded
invalidity
the
of the trial court’s
strating
with
marijuana
directions to
the
suppress
judgment.
learning
evidence.
the decision
Upon
of
the defendant dies before
When
conviction,
reversing
tel-
appellant’s
counsel
of
con
right
has exhausted his
house,
ephoned
only
Howell’s
to learn
to
preferable approach
is
clude
the
he had been murdered in March 1981.
to
the
and remand the case
appeal
dismiss
government
Counsel immediately notified
with directions to vacate
lower court
who
a Suggestion
counsel
then filed
of
by
the conviction and abate the
objec-
Death.
Over counsel for
approach
been
reason of death.1 This
tion,
panel
dis-
vacated its
by
variety
a
of federal courts.
endorsed
appeal
missed the
tunc.
508
v.
676 F.2d
See United States
Pauline,
(11th Cir.1982);
v.
United States
Appeals
right
solidly
are
rooted in
Cir.1980);
(5th
when has been taken from a
criminal conviction and death has de-
prived the accused of his right to our
decision, the justice require interests of
that he not stand convicted without reso-
lution of the merits of his
an integral part system for final- [our] ly adjudicating guilt or innocence. [his] States v. Moehlenkamp, [United BURRELL, Appellant, Robert (citations at 128 F.2d omitted).]
We view Dove as to the limited petitions certiorari the Supreme Court thus it control
present above, case.2 For the reasons noted
we order dismissed and of Columbia Court District Superior remanded to the the conviction vacated 21, 1982. Argued Oct. reason of death. 11, 1983. Decided Feb. So ordered.
NEBEKER, Associate with whom joins, concurring: KERN strange find it issue should energy
command the the court Pauline, supra; supra; United 2. Each federal court that has considered the Bechtel, supra; States v. validity and continuing effect of Dove States v. Moehlenkamp, supra. Durham concurs. See