Coleman v. United States
| Decision Date | 05 May 1980 |
| Docket Number | No. 79-592.,79-592. |
| Citation | 414 A.2d 528 |
| Parties | Ralph E. COLEMAN, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Melvin A. Marshall, Washington, D.C., appointed by the court, for appellant.
Barry M. Tapp, Asst. U.S. Atty., with whom Carl S. Rauh, U.S. Atty., Washington, D.C., at the time the case was briefed, and John A. Terry, Michael W. Farrell and Steven C. Tabackman, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before GALLAGHER, NEBEKER and MACK, Associate Judges.
This appeal from a pretrial denial of a double jeopardy motion presents an interesting and somewhat unfortunate consequence of the Supreme Court's decision in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). In that case the Supreme Court held that a pretrial order denying a motion to dismiss, predicated on double jeopardy grounds, is final and appealable. It acknowledged the fears of the Solicitor General on the probability that a frivolous double jeopardy claim could be raised under an Abney appeal with the attendant delay in the trial of the case, but suggested the use of "summary procedures and calendars to weed out frivolous claims of former jeopardy." Id. at 662 n. 8, 97 S.Ct. at 2042. We hold that while an appeal will lie under Abney, where the issue raised under the double jeopardy clause is frivolous, the appeal is subject to summary dismissal under the criteria of Ashe v. Robinson, 146 U.S.App.D.C. 220, 222, 450 F.2d 681, 683 (1971). See also Columbia Realty Venture v. District of Columbia Housing Rent Commission, D.C.App., 350 A.2d 120, 121 (1975); In re DeJ., D.C.App., 310 A.2d 834 (1973).
In May 1978, appellant was charged in a one-count information with possession of a dangerous drug in violation of D.C.Code 1973, § 33-702(a)(4). During the ensuing seven months, numerous continuances, not at the behest of the government, occurred. In January 1979, the government announced that it was not ready for trial and the trial judge dismissed the information for want of prosecution. On March 2, 1979, a second information charging delivery (D.C.Code 1973, § 33-702(a)(1)), was filed and appellant moved to dismiss it on speedy trial grounds. That speedy trial motion was denied within three weeks of the filing of the information. One month later, the appellant sought dismissal on the grounds of double jeopardy and what he termed prosecutorial misconduct. This motion was denied on May 18, 1979, and a notice of appeal was filed that day. The record on appeal was subsequently filed on July 5, 1979. Appellant's brief was filed on August 20, and the government's brief was filed on September 18. The case was heard on December 13. During this delay, proceedings necessarily have been stayed in the trial court for we hold to the rule that filing for a timely notice of appeal divests the trial court of jurisdiction.
On appeal appellant argued that the dismissal for want of prosecution was with prejudice and since the government did not appeal, no subsequent information could be filed. This argument is frivolous for "unless a dismissal for want of prosecution is granted pursuant to a finding that the Speedy Trial Clause of the Constitution has been violated, the dismissal is without prejudice to prosecution on a new indictment or information." United States v. Cephas, D.C.App., 204 A.2d 572, 573 (1964) (footnote omitted).* Moreover, even if this argument had any merit, it is quite clear that there is no colorable claim of former jeopardy available in this context, for no juror or witness was ever sworn. As can be seen from the foregoing chronology, the appellant has succeeded through this appeal, plus the filing of his double jeopardy motion, in obtaining a delay of almost one year.
We recognize that Abney permits an immediate appeal whenever a double jeopardy motion is denied, but it does not necessarily follow that the appeal must wend its way through the appellate process with the attendant advantage to the accused of delay. A mechanism does exist for the dismissal of frivolous appeals. See Pine View Gardens, Inc. v. Jay's Frosted Foods, Inc., D.C.App., 299 A.2d 536 (1973). See also Dallas Mailers...
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...is an interlocutory appeal, this court only has jurisdiction if Jones is in danger of being placed in double jeopardy. See Coleman v. United States, 414 A.2d 528, 530 (dismissing "as frivolous" an interlocutory appeal based on the Double Jeopardy Clause where no prior jeopardy had ever atta......
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