U.S. v. Garrison

• Decision Date: 23 June 1992
• Docket Number: No. 90-5782,90-5782
• Citation: 963 F.2d 1462
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Thomas Howard GARRISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1462

963 F.2d 1462

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Thomas Howard GARRISON, Defendant-Appellant.

No. 90-5782.

United States Court of Appeals Eleventh Circuit.

June 23, 1992.

James R. Gailey, Federal Public Defender, Gregory A. Prebish, and Helen C. Trainor, Asst. Federal Public Defenders, Miami, Fla., for defendant-appellant.

Linda Collins Hertz, Alice Ann Burns, and Debra J. Stuart, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON and COX, Circuit Judges and RONEY, Senior Circuit Judge.

ANDERSON, Circuit Judge:

This case raises the question of whether in a criminal case this court has jurisdiction to entertain an appeal which was filed after entry of judgment, but before the district court ruled on a motion for a new trial. We conclude that we have jurisdiction, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

On June 27, 1990, appellant, Thomas Garrison, was convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On July 3, 1990, Garrison filed a timely motion for a new trial. ¹ On August 30, 1990, Garrison was sentenced. On September 4, 1990, the district judge entered judgment notwithstanding that he had not yet ruled on Garrison's motion for a new trial. On September 14, 1990, Garrison filed a notice of appeal. On January 22, 1991, Garrison filed his initial brief with this court raising the following issues: (1) that there is insufficient evidence to support the conviction; (2) that the district court erred in denying Garrison's motion to strike the government's notice of enhanced penalty; and (3) that Garrison is entitled to a new trial because the verdict was a compromise verdict as the jury recommended "leniency" on the verdict form. Thereafter, on April 5, 1991, approximately nine months after Garrison filed his motion for a new trial and approximately seven months after the notice of appeal was filed, the district court entered a written order denying Garrison's motion for a new trial. ² No new notice of appeal was filed after the disposition of this motion.

Because this case presented the jurisdictional question involving the effectiveness of an appeal filed while there are motions still pending before the district court, we asked the parties to address the issue at oral argument.

II. JURISDICTION

A. Civil Cases

In civil cases, an appeal filed before the disposition of various post-trial motions is a nullity. Fed.R.App.P. 4(a)(4), which governs appeals in civil cases, was amended in 1979 to provide:

If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: ... (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial.... A notice of appeal filed before the disposition of ... the above motion[ ] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

Prior to 1979, if a notice of appeal in a civil case were filed after a timely filed motion, the district court retained jurisdiction to decide the motion. Nevertheless, the notice of appeal was not considered a nullity and was adequate to start the appeals process. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 59, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (citations omitted); Stokes v. Peyton's Inc., 508 F.2d 1287 (5th Cir.1975). ³ Many courts permitted the appeal to proceed as long as there was no prejudice from the premature filing of the appeal. See Williams v. Town of Okoboji, 599 F.2d 238 (8th Cir.1979); see also 15B Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3915.5 at 314-315 (1992). This result, in theory, permitted the appellate court and the district court to assert jurisdiction simultaneously.

Following the 1979 amendment, however, an appeal filed before the district court rules on certain enumerated motions is considered a nullity, and the appellant has the burden of filing again following the district court's disposition of those motions. In Griggs v. Provident Consumer Discount Co., 459 U.S. at 61, 103 S.Ct. at 403, the Supreme Court explained that to permit a "premature" notice of appeal to proceed would go against the plain language of Rule 4(a)(4). In fact, the Court stated that the filing of a premature notice of appeal is as "if no notice of appeal is filed at all." Id. at 61, 103 S.Ct. at 403. See also 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper, & Eugene Gressman, Federal Practice and Procedure § 3950 (Supp.1991).

B. Rule 4(b): The Case Law in Criminal Appeals

While the rule governing civil appeals, Rule 4(a)(4), was amended in 1979 to provide that a notice of appeal filed prior to the entry of an order disposing of certain post-trial motions is invalid, the rule governing criminal appeals, Rule 4(b), was not similarly amended. See United States v. Curry, 760 F.2d 1079, 1080 (11th Cir.1985) (noting differences between 4(a)(1) and 4(b)). Rule 4(b) provides in relevant part:

In a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by the Government. A notice of appeal filed after the announcement of a decision, sentence or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment.

Since 1979, various courts of appeals have considered the effect of filing a notice of criminal appeal while certain timely post-trial motions are pending. ⁴ A sharp conflict among the circuits has emerged. The Third and Seventh Circuits have concluded that such a notice of appeal is a nullity. See United States v. Davis, 924 F.2d 501 (3d Cir.1991); United States v. Gargano, 826 F.2d 610 (7th Cir.1987); United States v. Naud, 830 F.2d 768 (7th Cir.1987). The Ninth and Tenth Circuits have held that such a notice of appeal is effective. See United States v. Cortes, 895 F.2d 1245 (9th Cir.), cert. denied, 495 U.S. 939, 110 S.Ct. 2191, 109 L.Ed.2d 519 (1990); United States v. Varah, 952 F.2d 1181 (10th Cir.1991). The Eighth Circuit has adopted an intermediate approach dismissing the premature appeal but requiring the clerk of court to notify defendants in cases where premature appeals are filed that a new notice of appeal must be filed within ten days after the denial of the motion for a new trial or in arrest of judgment. United States v. Jones, 669 F.2d 559, 561 (8th Cir.1982).

In Davis, the Third Circuit held that an appellate court does not have jurisdiction to entertain an appeal filed after a post-trial motion is made but before it has been ruled on by the district court. 924 F.2d at 503-04. The court noted that 4(b), unlike 4(a), does not state that a notice of appeal filed before the disposition of a timely motion is a nullity. Id. Nonetheless, the court reasoned that concerns for judicial economy dictated that a like result should be reached. Id. The court stated that, as long as the district court maintained jurisdiction over pending motions, the appellate court "should be reluctant to hear a premature appeal lest it interfere with ongoing matters in the district court." 924 F.2d at 504. In essence, the Third Circuit was concerned that two courts would be addressing the same case simultaneously. Therefore, the Davis court decided that the best course was to dismiss the appeal in the case before it so that the district court could rule on the pending motion. After the district court ruled, the party would be free to appeal that disposition. Although the court recognized the potential trap for the unwary in other cases, the court concluded that a dismissal of the appeal would not be unfair to the appellants in the case before it because they would have notice that a new appeal should be filed following the time when the case was completed in the district court. 924 F.2d at 506.

Similarly, the Seventh Circuit, in United States v. Gargano, 826 F.2d 610 (7th Cir.1987) and United States v. Naud, 830 F.2d 768 (7th Cir.1987), held that the appellate court does not have jurisdiction over an appeal that is filed when there are pending motions in the district court. For example, in Gargano, the court held that the appellate court did not have jurisdiction over an appeal when the party, after filing the appeal, submitted in the district court a motion for reconsideration of a previous order denying motions for a reduction of sentence under Fed.R.Crim.P. 35. The court stated that "the filing of a motion to reconsider the denial of a Rule 35 motion nullifies a notice of appeal filed before the motion to reconsider is decided." 826 F.2d at 612.

The Eighth Circuit, in United States v. Jones, 669 F.2d 559 (8th Cir.1982), adopted an intermediate position. In Jones, the defendant appealed while a timely motion for a new trial was pending in the district court. The court stated that an appeal that precedes the disposition of the post-trial motions mentioned in Rule 4(b) is premature and "should be summarily dismissed without prejudice." 669 F.2d at 561. Nonetheless, the court was concerned that, in cases where a defendant is not notified that his appeal has been prematurely filed, he will be deprived of his appeal rights. Therefore, the...