Advance Opinions

issued our opinion reversing the Court of Appeals and remanding the case to the district court for further proceedings.

{20} As matters stand, the alleged victim and Defendant are both deceased. With no alleged victim and no defendant, there is no case. The appeal is absolutely moot. See Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008 (“A case is moot when no actual controversy exists, and the court cannot grant actual relief.” (internal quotation marks and citations omitted)). Furthermore, as matters stand, if the opinion is not withdrawn, we leave in place a purely advisory opinion. See City of Las Cruces v. El Paso Elec. Co., 1998-NMSC-006, ¶ 18, 124 N.M. 640, 954 P.2d 72 (“We avoid rendering advisory opinions.”) In addition, by substituting another party for the deceased Defendant, this Court effectively cuts off and prevents any further review of its opinion. The United States Supreme Court will not grant certiorari in a criminal case when the defendant has died. See Dove v. United States, 423 U.S. 325 (1976) (dismissing the petition for certiorari review because the petitioner died).

{21} The general rule is that “the prosecution abates from the inception of the case upon death of a criminal defendant.” State v. Salazar, 1997-NMSC-044, ¶ 20, 123 N.M. 778, 945 P.2d 996. I recognize that Rule 12-301(A), NMRA states in part that when the death of a party is suggested on the record, “proceedings shall then be had as the appellate court directs.” Exercising this discretion, Salazar modified, but did not abrogate, the general rule. Salazar only excluded from the general rule cases where the defendant dies while exercising the constitutional right to a direct appeal as a matter of right following a conviction. Salazar, 1997-NMSC-044, ¶ 30 (“This holding applies only to cases involving the death of a defendant who possesses a direct appeal as of right to a criminal conviction.”); see also N.M. Const. art.

VI, § 2 (providing a right of appeal from a sentence of death or life imprisonment). The case is now before us on a discretionary grant of certiorari, and not as a matter of right. Salazar does not apply. Because the direct appeal as of right requirement is not satisfied in this case, the general rule of abatement ab initio applies. The lack of any conviction weighs heavily in favor of applying the general rule of abatement ab initio, and I do not see any good reason for exercising our discretion to issue an advisory opinion in a case that is moot. Respectfully, asserting that the opinion addresses an issue of first impression is not, by itself, sufficient.

{22} I respectfully submit that the appropriate course in this case is to withdraw the opinion and remand the case to the district court to abate the entire proceeding ab initio. Since the majority disagrees, I dissent.

MICHAEL E. VIGIL, Justice