Abatement on appeal in Utah: what happens when a criminal defendant dies

A client dies while the appeal is still briefed and pending. The prosecutor wants the conviction left standing. The family wants it erased. The victim wants to know whether restitution is still owed. The answer to abatement on appeal in Utah differs from the federal answer, and that difference creates litigation risk. Utah’s own restitution statutes may now be pulling against the reasoning of its leading case.

The short answer: what abatement ab initio does

Abatement ab initio is the doctrine that a defendant’s death during a direct appeal ends not only the appeal but the entire prosecution, as though it never began.

Utah rejects it. In State v. Christensen, 866 P.2d 533 (Utah 1993), the Utah Supreme Court called abatement ab initio an “extreme and now discredited theory” and declined to adopt it. The penal parts of the sentence abate, but the conviction stands, and restitution treated as a civil judgment survives.

The federal courts apply it. The First Circuit reports that every federal court of appeals hearing direct criminal appeals has adopted the doctrine in a published decision, and, on whether restitution falls with the conviction after Nelson v. Colorado, that “Every circuit court to consider this question post-Nelson has reached this conclusion as well.”

Consequence of death pending appeal	Utah (Christensen)	Federal (Reynolds; Tenth Circuit practice)
Conviction	Remains intact	Vacated; indictment dismissed
Prison sentence and fines	Abate as purely penal	Abate with the prosecution
Restitution	Survives as a civil judgment unless there is a reversal or a remand	Vacated
Forfeiture and special assessments	No controlling Utah authority found	Vacated in Reynolds (distributed-property question reserved)
The appeal	Continues as to restitution, with substitution	Dismissed

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How abatement on appeal works in Utah

Christensen is the controlling Utah decision. The court began with the easy part: “There is no question but that upon Christensen’s death, the sentences to prison terms and the levy of criminal fines, being purely penal, abated.”

The conviction is another matter. The court refused to treat death as erasing the judgment and held that the conviction “is not abated” but remains intact.

Key rule: “Civil judgments do not abate upon the death of a judgment debtor pending appeal. … The appeal continues unaffected by the death except for the proper substitution of parties for the deceased appellant.” State v. Christensen, 866 P.2d 533 (Utah 1993).

The appeal continues as to restitution. Christensen remanded the case to the court of appeals “to hear defendant’s appeal on its merits insofar as it bears on the restitution order.” The court then set the outcome rule: “If that court affirms the trial court, the civil judgment remains valid and enforceable. If there is a reversal or a remand, defendant cannot be retried and the civil judgment abates.”

A dissent by Justice Howe in State v. Weeks, 2002 UT 98 repeated the point: “Even the death of the criminal defendant does not abate the restitution judgment.”

Boundaries. Christensen addressed a defendant who died while an appeal was pending. The authority collected here does not say whether the same rule governs a defendant who dies while a petition for certiorari, a petition for permission to appeal, or a post-conviction proceeding is pending. Treat those as open questions in Utah rather than assuming Christensen’s remand rule carries over.

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Fines, restitution, and substitution of a party in Utah

Christensen drew the line between fines and restitution on the nature of the obligation. Fines are “purely penal” and abate. Restitution was different. The court said that “the order of restitution in the exact amount of taxes owing stands on a different footing,” explaining that the order was not a criminal penalty because it required payment of only the taxes Christensen owed, plus penalties and interest. It added: “The legislature has made such an order the equivalent of a civil judgment.”

The current civil-judgment statute. Today’s counterpart is Utah Code § 77-18-114. It addresses the moment “when restitution is recorded as an order for a civil judgment of restitution on the civil judgment docket,” and subsection (7) provides: “A criminal accounts receivable, a civil accounts receivable, and a civil judgment of restitution are not subject to the civil statutes of limitation and expire only upon payment in full.”

The complication. The Crime Victims Restitution Act now characterizes the same judgment differently. Under Utah Code § 77-38b-301, “a civil judgment is criminal in nature,” its civil enforcement “shall be construed as a continuation of the criminal action,” and enforcement “does not divest a defendant of an obligation imposed as part of the defendant’s punishment in a criminal action.” And under Utah Code § 77-38b-205, restitution is ordered “as part of the sentence” when a defendant is convicted. Christensen let restitution survive because it was civil rather than penal. If the Legislature now calls it criminal and part of the punishment, an estate has a serious argument that restitution should abate like a fine. No Utah appellate decision in the authority collected here resolves that tension.

Substitution. Christensen contemplated “proper substitution of parties for the deceased appellant,” though it noted that none had been made in that case and that “the issue may need to be addressed on remand.” The general mechanism is Rule 38, URAP: “If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party.” If there is no representative, “any party may suggest the death on the record and proceedings shall then be had as the court may direct.”

Rule 38 does not mention criminal cases or abatement. How it interacts with Christensen, including who may be substituted and whether the State may force the question, is a matter of interpretation the cases collected here do not settle.

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The federal rule, the circuit divisions, and Nelson v. Colorado

As the First Circuit put it in United States v. Reynolds, No. 20-1268 (1st Cir. Apr. 9, 2024), when a defendant dies during a direct appeal, the death abates the appeal and the prosecution from its inception. Reynolds is a First Circuit decision and doesn’t bind the federal courts in Utah, but its survey of the circuits is the most useful recent map.

The rule in the Tenth Circuit

Reynolds reports that every other federal court of appeals that hears direct criminal appeals has adopted the doctrine in a precedential decision, and it lists the Tenth Circuit’s decision in United States v. Davis, 953 F.2d 1482 (10th Cir. 1992), among them. In United States v. Beecher, No. 24-8082 (10th Cir. Feb. 28, 2025) (unpublished order and judgment), the Tenth Circuit remanded “with directions to VACATE the judgment of conviction and DISMISS the underlying indictment.” Beecher is unpublished and non-precedential, but it shows what a Tenth Circuit disposition looks like.

Restitution, forfeiture, fines, and Nelson v. Colorado

In 2020 the Ninth Circuit wrote in United States v. Robertson, No. 19-30237 (9th Cir. Nov. 12, 2020) that “Circuit courts have split over the issue of whether criminal restitution orders fall under the abatement ab initio rule.” Robertson is a Ninth Circuit decision and doesn’t bind the federal courts in Utah. It abated the conviction and refunded special assessments and restitution.

Reynolds reports movement since the Supreme Court decided Nelson v. Colorado, including at least one circuit that previously did not abate restitution on a defendant’s death. Reynolds held that restitution falls with the conviction and observed that “Every circuit court to consider this question post-Nelson has reached this conclusion as well.” On remand, it directed vacatur of restitution, criminal forfeiture, and the special assessment.

Two limits apply. First, Reynolds expressly reserved “whether the different considerations that might arise where forfeited property had been distributed to victims before a defendant’s death would call for a different result.” Second, not every financial order abates. Robertson held that a Criminal Justice Act reimbursement order survives “because a CJA reimbursement may be ordered in the absence of a conviction.”

Death while certiorari is pending

Reynolds traces the Supreme Court’s history: “Five years later in Dove v. United States, 423 U.S. 325 (1976) (per curiam) the Court backtracked” from an earlier decision that had abated a conviction when the defendant died during certiorari. Reynolds concludes that “there is no controlling Supreme Court precedent that either requires us to apply, or prohibits us from applying, the doctrine of abatement ab initio” to a pending direct appeal. Robertson shows the procedure when death comes later: “Robertson died in March of 2019, while the petition was pending,” and the Supreme Court granted the petition, vacated, and remanded for the Ninth Circuit to consider mootness. On remand, the Ninth Circuit abated.

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Where abatement comes from: common law, rule, constitution, or statute

Utah: judge-made. Christensen traces Utah’s rule to the court’s own 1940 decision in State v. Fanalous, which held that when a defendant dies while a criminal appeal is pending, the criminal action does not survive but abates. No Utah statute or rule of appellate procedure in the collected authority codifies abatement. The restitution half of Christensen does rest on a statute, because the court’s reasoning depended on the Legislature’s treatment of restitution as a civil judgment. That makes the Utah doctrine a hybrid: a common-law rule about convictions and penalties, with a statutory premise about restitution.

Federal: judge-made, with constitutional roots. Reynolds describes the federal doctrine as tied to the statutory right to appeal, and it states that the primary rationale is grounded in procedural due process.

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Can the Utah Legislature legislate abatement on appeal in Utah?

This section is analysis. No Utah court has addressed an abatement statute, and the conclusions below are arguments, not settled law.

The constitutional framework

Utah Const. art. VIII, § 4 provides: “The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process.” It also provides: “The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature.”

The test comes from State v. Drej, 2010 UT 35, 233 P.3d 476. There, the question was “whether special mitigation is a rule of procedure or creates a substantive right.” The court explained that “Generally, the legislature has the authority to enact substantive laws governing conduct within the state,” that substantive law creates, defines, and regulates the parties’ rights and duties, and that procedural law supplies the machinery by which those rights are enforced. The special mitigation statute in Drej survived as substantive even though it had not passed by a two-thirds vote in the House, which shows that classification often decides these cases.

What a substantive statute could look like

A statute aimed at the survival of obligations, rather than appellate mechanics, has the strongest footing. It might provide that a restitution obligation is a debt of the defendant that survives death and is chargeable against the estate, independent of whether the conviction survives. The Act already treats the estate of a deceased victim as a victim under Utah Code § 77-38b-102, but nothing in the provisions collected here addresses the defendant’s death or estate. Defining the estate’s liability is the kind of rule that creates and defines rights and duties under Drej.

Where it could cross the line

The risk lies in provisions that tell the appellate court what to do: whether to dismiss the appeal, whether to vacate the conviction, who may be substituted, and whether the merits must be heard. Those provisions sit close to the Court’s duty to “manage the appellate process” and overlap with Rule 38, URAP. A statute doing that work would likely need the two-thirds vote to operate as an amendment of court rules. A further open question is whether the two-thirds power, which by its text reaches “the Rules of Procedure and Evidence,” extends to the separate command that the Court “by rule manage the appellate process.”

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Holes in Utah law on abatement on appeal

Restitution’s status after the 2021 Act. The largest gap is the collision between Christensen’s civil-judgment reasoning and § 77-38b-301’s declaration that the judgment is criminal and part of the punishment. An estate can argue restitution now abates like a fine. A victim can answer with § 77-18-114’s survival-until-paid language. Utah’s appellate courts have not resolved it in the authority collected here.

Forfeiture, special assessments, and other monetary orders. Christensen speaks to fines and restitution. It does not address forfeiture, surcharges, or fees. Robertson, a Ninth Circuit decision, treated a CJA reimbursement order, which may be ordered in the absence of a conviction, as surviving abatement. That decision doesn’t bind Utah courts.

Victims’ rights as a lever. Utah Const. art. I, § 28 protects victims’ rights “as defined by law” and states that “The Legislature shall have the power to enforce and define this section by statute.” It also disclaims “a cause of action for money damages” and “relief from any criminal judgment.” That combination points reform toward the Legislature rather than toward a constitutional claim by a victim.

Other states. In State v. Al Mutory, No. M2017-00346-SC-R11-CD (Tenn. 2019), the Tennessee Supreme Court held that, “due to changes in Tennessee’s public policy in the arena of victims’ rights, the doctrine of abatement ab initio must be abandoned,” dismissed the appeal, and reinstated the trial court judgment. That decision doesn’t bind Utah courts, but its survey describes models, including allowing “either a personal representative of a deceased defendant or the State to move for an appeal to continue.” Reynolds notes that a number of state high courts have rejected the doctrine.

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Practical checklist for counsel when a client dies pending appeal

• Confirm the forum. Utah and federal outcomes are opposite. Identify whether the case is a Utah direct appeal, a Tenth Circuit appeal, or something discretionary.
• Suggest the death on the record. Under Rule 38, URAP, any party may do so when there is no representative; in Utah, the appeal continues “on its merits insofar as it bears on the restitution order.”
• Inventory every monetary order. Separate fines (which abate in Utah) from restitution and from forfeiture, surcharges, and fees, where Utah authority is thin.
• Preserve the § 77-38b-301 argument. An estate challenging survival of restitution should raise the statute’s criminal-in-nature language expressly.
• In federal court, request full vacatur. Cite Davis for vacating the conviction and dismissing the indictment, and Reynolds for vacatur of restitution, forfeiture, and special assessments (Reynolds is a First Circuit decision and doesn’t bind the federal courts in Utah), and watch for the reserved distributed-property question.

A client’s death changes who is asking the questions. In Utah, the conviction stays, the appeal may continue for the estate, and restitution rises or falls on a merits ruling and on a statutory tension the courts have yet to resolve. In federal court, the same death can erase the case entirely. Counsel who treat the death as the end of the file may forfeit the estate’s best argument, or the victim’s, before anyone has made it.