USA v. Jeffrey Spivack, No. 21-12788 (11th Cir. 2023)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on February 2, 2023.
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USCA11 Case: 23-11886 Document: 13-1 Date Filed: 08/15/2023 Page: 1 of 2 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-11886 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plainti -Appellee, versus JEFFREY SPIVACK, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:21-cr-80016-KAM-1 ____________________ USCA11 Case: 23-11886 2 Document: 13-1 Date Filed: 08/15/2023 Opinion of the Court Page: 2 of 2 23-11886 Before ROSENBAUM, JILL PRYOR, and Grant, Circuit Judges. PER CURIAM: This appeal is DISMISSED, sua sponte, for lack of jurisdiction. Jeffrey Spivack appeals from the district court’s May 18, 2023, order construing his motion to dismiss as a 28 U.S.C. § 2255 motion to vacate. That order is not final and appealable, however, because it did not end the litigation on the merits in the district court. See 28 U.S.C. § 1291; Acheron Cap., Ltd. v. Mukamal, 22 F.4th 979, 986 (11th Cir. 2022) (stating that a final order ends the litigation on the merits and leaves nothing for the court to do but execute its judgment). The district court has not ruled on the recharacterized § 2255 motion. Additionally, the district court’s May 18, 2023 order is not effectively unreviewable on appeal from a final order resolving the case on the merits. Plaintiff A v. Schair, 744 F.3d 1247, 1252-53 (11th Cir. 2014) (explaining that a ruling that does not conclude the litigation may be appealed under the collateral order doctrine if it, inter alia, is “effectively unreviewable on appeal from a final judgment”). No petition for rehearing may be led unless it complies with the timing and other requirements of 11th Cir. R. 40-3 and all other applicable rules.
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