Opinion
No. SD 36302
12-21-2020
In the Matter of the Care and Treatment of Donald PECKHAM, a/k/a Donald D. Peckham, a/k/a Donald Dean Peckham, Respondent-Appellant, v. STATE of Missouri, Petitioner-Respondent.
Attorney for Appellant: Amy E. Lowe of St. Louis, MO. Attorneys for Responent: Eric S. Schmitt, Atty. Gen., and Garrick Aplin, Asst. Atty. Gen., of Jefferson City, MO.
Attorney for Appellant: Amy E. Lowe of St. Louis, MO.
Attorneys for Responent: Eric S. Schmitt, Atty. Gen., and Garrick Aplin, Asst. Atty. Gen., of Jefferson City, MO.
Before Bates, C.J./P.J., Lynch, J., and Sheffield, J.
PER CURIAM.
Donald Peckham (Appellant) was found to be a sexually violent predator pursuant to § 632.480 RSMo (2016) and was committed to the custody of the Department of Mental Health for treatment. The judgment was affirmed on appeal by this Court on August 31, 2020. Thereafter, Appellant filed an application for transfer with our Supreme Court. While the application was pending, Appellant died. The Supreme Court accepted the suggestions of death filed by counsel, struck all prior filings by Appellant, and closed its case.
"Missouri courts have long recognized the doctrine of abatement ab initio[.]" State v. Mott , 569 S.W.3d 555, 556 (Mo. App. E.D. 2019). "It is not the appeal which abates, but the prosecution itself, the right of the action itself[.]" Baker v. Modern Woodmen of America , 121 S.W. 794, 797 (Mo. App. 1909). Abatement "means an extinguishment of the very right of action itself." Id . The abatement doctrine applies to criminal cases as well as certain civil matters. Town of Carrollton v. Rhomberg , 78 Mo. 547, 549 (1883) ; City of Clayton v. Sigoloff , 452 S.W.2d 315, 316 (Mo. App. 1970). "In general, an action which is personal abates upon the death of a party." In re Marriage of Carter , 794 S.W.2d 321, 322 (Mo. App. 1990). In such a case, "[w]hen an appellant dies prior to his appeal becoming final, we are required to remand the case to the circuit court to dismiss the underlying action." Mott , 569 S.W.3d at 556.
The common law rule of abatement has been abrogated by statute in certain instances. See, e.g. , Breeden v. Hueser , 273 S.W.3d 1, 11 (Mo. App. W.D. 2008). Sexually violent predator cases are purely personal to the convicted sex offender and we find no statute to the contrary.
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Accordingly, we withdraw our opinion filed August 31, 2020, and remand this matter to the circuit court with directions to vacate its judgment and commitment order, and to dismiss the underlying petition.