Eleventh Circuit Dismisses Appeals as Untimely Filed Before Prior Appeal Resolved – U.S. v. Diveroli

September 18, 2013 by David S. Seltzer

Felon in possession of a firearm is a criminal charge that commonly makes its way to the appellate courts. It’s a possession crime, which means it’s easy to prove; prosecutors don’t have to show intent or state of mind or anything other than the bare fact of possession. And because firearm possession is a Second Amendment right, defendants may not realize that a change in status to a convicted felon is adequate to take that right away. In United States v. Diveroli, Efraim Diveroli was convicted of receiving firearms during the time between his guilty plea to a conspiracy charge and his sentencing. He sought to dismiss the charging document, but he filed that motion after a direct appeal of his conviction and sentence. The district court denied it, but the Eleventh U.S. Circuit Court of Appeals ruled that it should have dismissed for lack of jurisdiction.

Diveroli, of the Middle District of Florida, was indicted on conspiracy charges in 2008. (The opinion doesn’t say what the conspiracy was for.) He pleaded guilty in 2009 and was sentenced 17 months later to four years in prison. He was free during the time between the plea and the sentencing, and used part of it to receive a shipment of semiautomatic weapons and ammunition from undercover agents. As a result, Diveroli was already a convicted felon before he received the guns. He pleaded guilty to the firearms charge in 2010, with a plea agreement that did not discuss sentencing enhancements for crimes committed on pretrial release, but that did expressly include a sentencing appeal waiver. When the presentencing report included such an enhancement, as well as one for having been near high-capacity magazines, he objected. He was sentenced to four years, two of which were intended to run concurrently with the conspiracy sentence.

Diveroli first appealed his conviction and sentence, arguing that he wasn’t told he would face the sentence enhancements before he agreed to the plea. After that appeal was filed and briefing began, but before a decision, Diveroli also moved to dismiss the charging document in trial court for an alleged defect. The district court at first dismissed that motion for lack of jurisdiction, because an appeal had begun, but reconsidered and dismissed on the merits. Diveroli appealed that decision.

During the pendency of this second appeal, the Eleventh Circuit ruled on and denied his first appeal. In the second appeal, the Eleventh took up the jurisdiction question first and never reached the merits. Though it’s settled that trial courts have no jurisdiction after an appeal, a defect in a charging document is so serious that appeals courts are required to take up the issue even if it’s raised for the first time on appeal or no party raises it, the Eleventh observed. Diveroli argued that the federal rules of criminal procedure allow parties to bring charging defect claims anytime while the case is pending, but the Eleventh held that this doesn’t extend to after an appeal. Prior cases say a case is no longer pending before the district court when it’s on appeal, the Eleventh observed, and practical considerations forbid dual jurisdiction. Thus, it reversed and remanded with instructions to dismiss the motion.

When you’re facing criminal charges, it’s vital to make sure your legal defense is strong, coordinated and experienced. It’s not clear what kind of legal advice Diveroli was getting, but an experienced attorney should be able to tell someone in Diveroli’s position that there are additional penalties for committing another crime while already out on pretrial release. In addition, an experienced lawyer should be able to raise objections at the proper time, preventing motions from being dismissed for lack of jurisdiction. No attorney can guarantee positive results, but having experience on your side should mean that your arguments are almost always heard on the merits, not dismissed as untimely or improper for technical reasons.

If you’re accused of a crime in Miami-Dade County, Broward or anywhere in Florida, don’t hesitate to call Seltzer Law, P.A. for help. We answer the phone 24 hours a day and seven days a week, because we know police don’t go home at 5 p.m. For a free consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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