
    STATE v. McCURY.
    No. 5925.
    Circuit Court, Dade County, Criminal Appeal.
    June 13, 1966.
    Cunningham & Weinstein, Miami, for appellant.
    Richard E. Gerstein, State Attorney, John P. Durant, Assistant State Attorney, for appellee.
   HENRY L. BALABAN, Circuit Judge.

Order on motion to abate: In a criminal proceeding, where defendant was convicted in the trial court and appealed, but died pending the appeal, the proceedings are abated ab initio and in toto which includes the trial action and the appeal.

To “abate” is to render non-existent. The question of appellant’s guilt is necessarily left undetermined, and the legal presumption of innocence abides. Bagley v. State (Fla. App. 1960), 122 So.2d 789; Cruz v. State (Fla. App. 1962), 137 So.2d 254.

It is accordingly ordered and adjudged that this appeal as well as the proceedings and judgment in the trial court are abated.  