556 F2d 1246 United States v. Fernandez

556 F.2d 1246

UNITED STATES of America, Plaintiff-Appellee,
v.
Manuel Louis FERNANDEZ, Defendant-Appellant.

No. 76-3434.

United States Court of Appeals,
Fifth Circuit.

Aug. 4, 1977.

Alvin E. Entin, North Miami Beach, Fla., Manuel W. James, Key West, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Stephen M. Pave, James E. McDonald, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before CLARK and GEE, Circuit Judges, and MARKEY,* Chief Judge.

GEE, Circuit Judge:

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1

This case presents an appeal of a denial of a motion to suppress and motion to divulge the identity of a confidential informant. The more important aspect of the case is that these issues are non-jurisdictional and were pursued after the defendant entered a plea of nolo contendere. In United States v. Sepe, 486 F.2d 1044 (5th Cir. 1973) (en banc), the en banc court said in unequivocal terms:(A)s a matter of policy this court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on nonjurisdictional grounds.

2

We repeat this admonition: prosecutors and district courts are reminded of our statement in Sepe and the district courts are directed to cease receiving pleas so conditioned.

3

Nevertheless, in light of the isolated incidence of this violation and the substantial expenditure of effort on the part of all the parties concerned with this case, we proceed to the merits. AFFIRMED pursuant to Local Rule 21.1

*

Of the U. S. Court of Customs and Patent Appeals, sitting by designation

1

See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966