Sell v. United States, 539 U.S. 166, 25 (2003)

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Scalia, J., dissenting

April 4, 2001, order must wait until after conviction and sentence have been imposed.5

It is true that, if petitioner must wait until final judgment to appeal, he will not receive the type of remedy he would prefer—a predeprivation injunction rather than the postdeprivation vacatur of conviction provided by Riggins. But that ground for interlocutory appeal is emphatically rejected by our cases. See, e. g., Flanagan, supra (disallowing inter-locutory appeal of an order disqualifying defense counsel); United States v. Hollywood Motor Car Co., 458 U. S. 263 (1982) (per curiam) (disallowing interlocutory appeal of an order denying motion to dismiss indictment on grounds of prosecutorial vindictiveness); Carroll v. United States, 354 U. S. 394 (1957) (disallowing interlocutory appeal of an order denying motion to suppress evidence).

We have until today interpreted the collateral-order exception to 1291 " 'with the utmost strictness' " in criminal cases. Midland Asphalt Corp. v. United States, 489 U. S. 794, 799 (1989) (emphasis added). In the 54 years since we invented the exception, see Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), we have found only three types of prejudgment orders in criminal cases appealable: denials of motions to reduce bail, Stack v. Boyle, 342 U. S. 1 (1951), denials of motions to dismiss on double-jeopardy grounds, Abney, supra, and denials of motions to dismiss under the Speech or Debate Clause, Helstoski v. Meanor, 442 U. S. 500 (1979). The first of these exceptions was justified on the ground that the denial of a motion to reduce bail becomes moot (and thus effectively unreviewable) on appeal

5 To be sure, the order here is unreviewable after final judgment if the defendant is acquitted. But the "unreviewability" leg of our collateral-order doctrine—which, as it is framed, requires that the interlocutory order be "effectively unreviewable on appeal from a final judgment," Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978) (emphasis added)—is not satisfied by the possibility that the aggrieved party will have no occasion to appeal.

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