Can a defendant unilaterally obtain a trial continuance by appealing from the denial of a motion to dismiss?
MultiRegion, United States of America
The following excerpt is from U.S. v. Burt, 619 F.2d 831 (9th Cir. 1980):
As a general rule, when a party files a notice of appeal from a final appealable order, then jurisdiction is conferred upon the court of appeals and the trial court is without the power to proceed. Moroyoqui v. United States, 570 F.2d 862, 864 (9th Cir. 1977). Because of this, a defendant may be able to unilaterally obtain a trial continuance by merely appealing from the denial of a purely frivolous or dilatory motion to dismiss based either on double jeopardy or vindictive prosecution grounds.
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