From Casetext: Smarter Legal Research

U.S. v. Hembree

United States Court of Appeals, Eleventh Circuit
Aug 23, 2004
381 F.3d 1109 (11th Cir. 2004)

Summary

denying a motion to file a substitute or amended principal brief raising a Blakely claim

Summary of this case from Geter v. United States

Opinion

No. 03-16001.

August 23, 2004.

John Stewart Mills, Mills Carlin, P.A., William Mallory Kent, Law Office of William Mallory Kent, Jacksonville, FL, for Defendant-Appellant.

Nancy J. Hess, Randall J. Hensel, U.S. Atty., Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida; D.C. Docket No. 02-00070-CR-3-RV.

Before DUBINA, BLACK and PRYOR, Circuit Judges.


On July 23, 2004, this court denied Appellant's motion for leave to file a supplemental brief pursuant to Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). Appellant now files a motion seeking to either file a substitute principal brief, or seeks this court's reconsideration of its July 23, 2004, Order. Appellant is attempting to do indirectly what he cannot do directly — raise a Blakely issue when it was not raised in his initial brief.

This court's precedent establishes that a party may not raise through a supplemental brief an issue not previously raised in his principal brief. See U.S. v. Curtis, 380 F.3d 1308, No. 02-16224 (11th Cir. August 10, 2004); U.S. v. Levy, 379 F.3d 1241, No. 01-17133 (11th Cir. August 3, 2004); U.S. v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001); U.S. v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001); U.S. v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000). Therefore, to the extent that Appellant seeks reconsideration of the July 23, 2004, Order, his motion is DENIED.

To the extent that Appellant's motion seeks to file a substitute principal brief for the purpose of raising a Blakely issue, we hold that such Blakely motions to file a substitute or amended principal brief should be construed as motions to file a supplemental brief and should be denied. Such Blakely motions must be construed for what they are. Otherwise, this court would be permitting Appellant, through a motion for a substituted or amended principal brief, to circumvent improperly our above precedent and to do indirectly what Appellant cannot do directly. Nor will we sua sponte order the filing of substituted or amended principal briefs. To do so is impermissible as it too would circumvent improperly the above precedent of this court that forbids raising new issues by supplemental briefs. Accordingly, Appellant's motion to file a substitute principal brief is also DENIED.


Summaries of

U.S. v. Hembree

United States Court of Appeals, Eleventh Circuit
Aug 23, 2004
381 F.3d 1109 (11th Cir. 2004)

denying a motion to file a substitute or amended principal brief raising a Blakely claim

Summary of this case from Geter v. United States

denying a motion to file a substitute or amended principal brief raising a Blakely claim

Summary of this case from U.S. v. Silvestri

denying a motion to file a substitute or amended principal brief raising a Blakely claim

Summary of this case from U.S. v. Levy
Case details for

U.S. v. Hembree

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff-Appellee v. GREGORY WADE HEMBREE…

Court:United States Court of Appeals, Eleventh Circuit

Date published: Aug 23, 2004

Citations

381 F.3d 1109 (11th Cir. 2004)

Citing Cases

U.S. v. Smith

If the "new rule" is announced after the defendant's opening brief is filed, it will be applied retroactively…

U.S. v. Silvestri

Under the law of this Circuit, an issue not raised in a party's initial appellate brief is considered waived,…