United States v. Isabella, 24697.
| Decision Date | 23 January 1958 |
| Docket Number | No. 24697.,24697. |
| Citation | 251 F.2d 223 |
| Parties | UNITED STATES of America v. Florio ISABELLA, Defendant. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul W. Williams, U. S. Atty. for the S. D. of New York, New York City (William D. Walsh, Asst. U. S. Atty., New York City, of counsel), for the United States.
Florio Isabella, pro se.
Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.
Florio Isabella was convicted on three counts of an indictment charging violations of the narcotics laws, 21 U.S.C.A. §§ 173-174, and conspiracy in violation of 18 U.S.C. § 371. An information having been filed charging previous convictions he was sentenced by Judge Edelstein as a third offender on May 1, 1957, to fifteen years imprisonment on Counts 1 and 2, to run concurrently, and to five years probation on Count 3, to begin after the service of the term of imprisonment. He was represented by counsel who stated in open court, immediately after the imposition of sentence, that Isabella would appeal to this Court.
The notice of appeal, however, which should have been filed on the tenth day after sentence or on May 11, 1957 at the latest, was not filed in the Office of the Clerk of the District Court for the Southern District of New York until Monday, May 13, 1957. This late filing of the notice was due to the oversight or neglect of the attorney whom Isabella retained to prosecute his appeal, or someone to whom his attorney delegated the task of the timely filing of the notice. Shortly thereafter this attorney refused to render further services because of Isabella's inability to pay the fee he requested for prosecution of the appeal. Nevertheless, on October 21, 1957 Isabella, not aware of the late filing of the notice but rather with the belief that his appeal was still pending, submitted to the Clerk of this Court a motion for leave to proceed with his appeal in forma pauperis, requesting a copy of the transcript of the trial minutes at government expense. The United States Attorney did not file any papers in opposition to this motion, but instead noticed a motion for December 9, 1957 to dismiss the appeal as not timely taken. Then Isabella learned for the first time that the notice of his appeal had not been filed within the required time.
In opposition to the motion of the United States Attorney Isabella takes the position that the mere difference of two days, one of which was a Sunday, is a technical and unsubstantial basis for dismissing the appeal which he believed had been timely taken. Arguing pro se he urges the following reasons for the denial of the motion to dismiss:
1. That on the day of sentence his attorney "orally served notice that he would appeal."
2. That "due to the religion of his attorney" Saturday, May 11, 1957 was not a working day and "the modern, prevalent practice of working only a five-day week" eliminates from the usual computation Saturdays and Sundays.
3. That there had been a waiver by reason of the delay in calling attention to the late filing of the notice of appeal, Isabella having in the interval made efforts to perfect his appeal and finally submitted pro se his application for leave to prosecute the appeal in forma pauperis and to obtain a copy of the transcript of the trial minutes at government expense.
The question in this case is one of power; for, if this Court had discretion in the matter we might well exercise it in favor of the prisoner.
It has long been settled law that where a notice of appeal is filed too late no conduct thereafter on the part of the appellee can constitute a waiver or give the appellate court competence to hear and determine the alleged appeal. The timely service of the notice of appeal is the sole legal basis for the authority of the appellate court to proceed.
But a letter addressed to the trial judge has been held a sufficient compliance with Rule 37(a) (1) of the Federal Rules of Criminal Procedure, ...
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...June 18 was the first day of the period and June 24 was the seventh day. For a comparable factual situation see United States v. Isabella, 2 Cir. 1958, 251 F.2d 223, where the defendant was sentenced on May 1, 1957, but did not file his notice of appeal until May 13, 1957. The Second Circui......
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