966 F. 2d 1455 - United States v. Little

The defendant is appealing a district court order denying her motion for a new trial. On January 29, 1992, a jury found the defendant guilty of conspiracy to possess with intent to distribute a controlled substance and possession of a controlled substance with intent to distribute, aiding and abetting. On February 5, 1992, the defendant filed a motion for a new trial which was denied by the district court by order entered on March 3, 1992. The defendant's notice of appeal was filed on March 12, 1992. She has not yet been sentenced.

Under 28 U.S.C. § 1291, courts of appeals have jurisdiction only over final decisions of the district court. In a criminal case, this prohibits appellate review until after conviction and sentence. Flanagan v. United States, 465 U.S. 259, 263 (1984); Berman v. United States, 302 U.S. 211, 212 (1937). Generally, where no judgment of conviction, sentence and commitment has been entered, an order denying a new trial is a non-final, non-appealable order. United States v. Battista, 418 F.2d 572, 573 (3rd Cir.1969) (per curiam). "A timely appeal from the judgment of conviction will take up the grounds assigned to a motion for a new trial which may be included in the points raised on appeal." Richardson v. United States, 360 F.2d 366 (5th Cir.1966).

It is therefore ORDERED that this appeal is dismissed sua sponte for lack of appellate jurisdiction. Rule 9(b)(1), Local Rules of the Sixth Circuit. This order is without prejudice to the defendant's right to perfect a timely appeal after sentencing.