Opinion
Case No. 1:01-CR-23 ST.
April 21, 2003
ORDER
At a hearing held on January 21, 2003, the Court denied the defendant's Motion to Dismiss for Speedy Trial Act violation. Thereafter, the defendant appealed the Court's decision. On February 5, 2003, the Court entered its written Order denying the defendant's Motion to Dismiss.
On January 31, 2003, the defendant filed a Notice of Appeal, and on February 4, 2003, he filed an Amended Notice of Appeal.
A three-day jury trial is currently set in this matter for April 30, 2003 through May 2, 2003. On March 27, 2003, a hearing was held and the parties were asked to simultaneously brief the issue of whether the defendant's filing of an interlocutory appeal of this Court's denial of his Motion to Dismiss divested this Court of jurisdiction during the pendency of that appeal. The Court, having considered the briefs and arguments of the parties, having reviewed the file, and being otherwise fully informed, rules as follows.
A defendant's filing of a notice of appeal, as a general rule, divests the district court of jurisdiction. However, if a case is frivolous, the district court is not divested of its jurisdiction. See United States v. Hines, 689 F.2d 934, 937 (10th Cir. 1982). The Tenth Circuit has recognized that the United States Supreme Court "has held constitutional speedy trial claims are not reviewable interlocutorily." United States v. Tsosie, 966 F.2d 1357, 1360 (10th Cir. 1992), citing United States v. MacDonald, 435 U.S. 850, 861 (1978).
When reviewing the defendant's Motion to Dismiss, the Court carefully weighed the issues, and issued a fully informed opinion. The Court found that the defendant's claims of a violation of his rights under the Speedy Trial Act were without merit and denied the Motion. The Court now makes the finding that the defendant's filing of a Notice of Appeal regarding that decision is frivolous and does not divest it of jurisdiction. Further, although no formal motion to stay these proceedings has been filed, the Court will not stay this case, and will continue to proceed to a resolution of this matter. See Hines, 689 F.3d at 936.
28 U.S.C. § 1291 states that a court of appeal "shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . ." (emphasis added). Defense counsel, in his Anders Brief to the Tenth Circuit has conceded that "there has been no conviction or imposition of sentence and, therefore, this is not an appeal of a final decision." In order to circumvent the final decision requirement, the case must fall into the collateral order exception. There are three requirements that would render a collateral order appealable interlocutorily: "The order must: `(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.'" United States v. Tsosie, 966 F.2d 1357, 1359 (10th Cir. 1992). The Supreme Court has applied the collateral order doctrine to four specific categories of criminal cases, none of which involve the Speedy Trial Act. See Tsosie, 966 F.2d at 1359 (also holding that a dismissal without prejudice for Speed Trial Act did not fit under the collateral order doctrine.).
In this case, the Court is of the opinion that the Court's denial of the defendant's Motion to Dismiss was not a "final order" within the meaning of 28 U.S.C. § 1291, nor does it fall within the "collateral order exception." Further, as the defendant's claims are without merit and constitutional speedy trial claims are not reviewable interlocutorily, the Court finds that the defendant's appeal is frivolous and does not divest this Court of jurisdiction.
Therefore, the Court will not stay these proceedings, and will proceed toward a trial or other final resolution of this case.
SO ORDERED.
BY THE COURT: