Friday, October 27, 2006

Anders Brief not Required When Defendant Seeks Appeal of Non-Appealable Order Over Which Court Lacks Jurisdiction

United States v. Powell, No. 05-50918 (5th Cir. Oct. 25, 2006) (Jones, Smith, Stewart)

The background:
Isaac Powell was under supervised release arising out of a previous counterfeit security conviction when the government requested a blood sample pursuant to theDNA Act. Powell initially refused, but after discussions with the district court judge who warned Powell that if he did not submit the blood sample he could face revocation of his supervised release, he relented and provided the sample to the government. Powell challenges the constitutionality of the DNA Act in this appeal.

Slip op. at 1-2. The court holds that it lacks jurisdiction to consider Powell's appeal because he appealed from a non-appealable order. The court further holds that "[t]here is no Anders duty in situations such as this where defendant seeks an appeal of a nonappealable order over which this court has no jurisdiction." Slip op. at 2.


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