S. Ct. Crim. No. 2015-0017

In a criminal case in which the defendant was charged with one count of third-degree assault in violation of 14 V.I.C. § 297(2); one count of unlawfully discharging a firearm in violation of 23 V.I.C. § 479(a)(2); three counts of unauthorized use of a firearm in violation of 14 V.I.C. § 2253(a); and one count of first-degree reckless endangerment in violation of 14 V.I.C. § 625(a), and in which the jury ultimately acquitted the defendant of both third-degree assault and unlawful discharge of a firearm, but failed to reach a unanimous verdict on the unauthorized use of a firearm and reckless endangerment counts, the defendant appealed the Superior Court's order denying his motion to dismiss the unauthorized use of a firearm counts based on the jury's acquittal on the third-degree assault and unlawful discharge of a firearm counts. Although the defendant maintained at trial and in his appellate brief that the remaining firearm charges must be dismissed due to his acquittal on the third-degree assault and unlawful discharge charges, he expressly conceded at oral argument that he may be retried on all remaining charges, and limited his argument solely to challenging the potential imposition of a sentence enhancer premised on use of a firearm during a crime of violence if he is ultimately convicted at retrial. Since the defendant's waiver in this regard prevents the Court from granting him any relief that would prevent a retrial, an immediate appeal is not necessary to safeguard any of the rights conferred upon him by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Accordingly, the appeal is dismissed for lack of appellate jurisdiction.