United States v. William Joel Dempsey

5 F.3d 541, 1993 U.S. App. LEXIS 30334, 1993 WL 339955

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 3, 1993
• Docket: 93-10121
• Status: Published

Opinion

5 F.3d 541
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
William Joel DEMPSEY, Defendant-Appellant.

No. 93-10121.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 23, 1993.*
Decided Sept. 3, 1993.

Before: PREGERSON, BRUNETTI, and RYMER, Circuit Judges.

MEMORANDUM**

William Joel Dempsey appeals the district court's order dismissing, without prejudice, an indictment under the Speedy Trial Act (STA), 18 U.S.C. Sec. 3161(b). Dempsey was charged with escape from a correctional institution in violation of 18 U.S.C. Sec. 751. Dempsey contends the district court erred by dismissing the indictment without prejudice, rather than with prejudice, under the STA. We dismiss the appeal for lack of jurisdiction.

A district court's order dismissing an indictment, without prejudice, under the STA is not appealable prior to final judgment. Cf. United States v. Ford, 961 F.2d 150, 151 (9th Cir.1992) (per curiam) (order dismissing, without prejudice, an indictment under speedy trial provision of the Interstate Agreement on Detainers Act is not appealable); see also United States v. Mehrmanesh, 652 F.2d 766, 769-70 (9th Cir.1980) (order denying a motion to dismiss for violation of STA is not appealable).

Here, the district court granted Dempsey's motion for dismissal under the STA because the government failed to indict him within thirty days of his arrest. Dempsey then filed a notice of appeal from the district court's dismissal order. Shortly thereafter, the government re-indicted Dempsey for the same charge and he pled guilty.

Because the district court's order dismissing Dempsey's indictment is not a final judgment, we lack jurisdiction over this appeal. See Ford, 961 F.2d at 151.

DISMISSED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3