United States of America, Plaintiff-appellee, v. Edward James Boyd, Jr., Defendant-appellant, 948 F.2d 1290 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 948 F.2d 1290 (6th Cir. 1991)

Nov. 19, 1991

Before KENNEDY and NATHANIEL R. JONES, Circuit Judges, and CONTIE, Senior Circuit Judge.


The defendant appeals an order denying his motion to suppress evidence in this prosecution for possession with intent to distribute cocaine base. The order denying the motion to suppress was entered on September 16, 1991. Subsequently, on September 26, 1991, the defendant entered a guilty plea conditioned upon his right to appeal the denial of the suppression motion. The court accepted the plea, but deferred a finding of guilty until the sentencing. The defendant remains free on bond and presentence report is presently being prepared. The district court has not yet set a date for sentencing.

With approval of the court and consent of the government, a defendant may enter a conditional plea of guilty and reserve the right to review of an adverse ruling on a pretrial motion. Fed. R. Crim. P. 11(a) (2). However, the denial of a motion to suppress is generally not immediately appealable. Di Bella v. United States, 369 U.S. 121, 131-32 (1962). In a criminal case, the final judgment for purposes of appeal is the sentence. Berman v. United States, 302 U.S. 211, 212 (1937). In the instant case, although the plea has been accepted, the defendant has yet to be found guilty and sentenced.

It therefore is ORDERED that this appeal is dismissed sua sponte as premature, without prejudice to the defendant's right to perfect a timely appeal on the suppression issue upon the entry of the final judgment.