OpenJurist

940 F2d 663 United States v. McQuiston

940 F.2d 663

UNITED STATES of America, Plaintiff-Appellee,
v.
Dale Conrad McQUISTON, Defendant-Appellant.

No. 91-5416.

United States Court of Appeals, Sixth Circuit.

Aug. 12, 1991.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before KENNEDY and MILBURN, Circuit Judges, and ZATKOFF, District Judge.*

ORDER

2

This matter is before the court upon consideration of the appellee's motion to dismiss on the basis that the appellant improperly filed a pro se notice of appeal although he was represented by counsel. In addition, the appellee argues that the notice of appeal seeks review of the dismissal of a motion which was never filed in the district court. No response has been filed to the motion to dismiss, but the appellant has filed a motion for transcript.

3

The district court docket sheet reflects that there was a hearing on March 22, 1991, at which time oral motions for bifurcated trial, daily transcript, dismissal of the action, and to relieve defense counsel were presented and denied. The appellant appealed pro se on March 29, 1991, from the March 22, 1991, order which he alleges dismissed his "Motion to Grant Appropriate Relief on Error's Affecting Defense and Dismiss." In the pro se notice of appeal, appellant states that he expressed his concerns regarding procedural errors, misconduct and fraud in the 35 page motion and discussed the matter in detail with his attorney the day before the hearing. However, counsel only presented evidence of the due process error to the court.

4

There is no appealable order from which appellant may appeal. It is well recognized that in the absence of a final order, this court generally lacks jurisdiction. Ford Motor Co. v. Transport Indem. Co., 795 F.2d 538, 543 (6th Cir.1986). The conviction and sentence is the final judgment for purposes of an appeal in criminal cases. Flanagan v. United States, 465 U.S. 259, 263 (1984); United States v. Bratcher, 833 F.2d 69, 71 (6th Cir.1987), cert. denied, 484 U.S. 1030 (1988).

5

Accordingly, it is ORDERED that the motion for transcript be denied, the motion to dismiss be granted and the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit.

*

The Honorable Lawrence P. Zatkoff, U.S. District Judge for the Eastern District of Michigan, sitting by designation