Fallen v. United States

Decision Date11 October 1962
Docket NumberNo. 19527.,19527.
Citation306 F.2d 697
PartiesFloyd Charles FALLEN, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Wm. Glenn Cone, Jacksonville, Fla., for appellant.

Emmett A. Moran, Asst. U. S. Atty., Jacksonville, Fla., for appellee.

Before RIVES, JONES and GEWIN, Circuit Judges.

JONES, Circuit Judge.

Floyd Charles Fallen has attempted to appeal from a judgment and sentence which followed a verdict of guilty returned after a trial in the District Court of the Southern District of Florida sitting in Jacksonville. Presiding at the trial and imposing the sentence was Judge Albert L. Reeves, a Senior Judge of another District sitting by designation. The two indictments upon which Fallen was tried and convicted charged a conspiracy, breaking into a post office, and stealing and converting property of the United States. The two cases were consolidated for trial. The verdicts finding Fallen guilty were returned on January 11, 1962. On January 15, 1962, Fallen appeared with his court-appointed counsel for sentencing. Prior to imposing sentence the judge briefly reviewed and recited the testimony showing that Fallen had participated in the post office robbery, received and took away some of the fruits of that theft, and that his car was used to take some of the stolen property to Tennessee and North Carolina. The judge reviewed the criminal record of Fallen and called his attention to his statement while on probation that as long as he was on probation he would behave himself but when probation terminated he would go the limit in violating the law. Sentences aggregating twenty years were imposed. On the following day, January 16, 1962, Fallen was taken by the United States Marshal to the United States Penitentiary at Atlanta, Georgia.

On January 29, 1962, eighteen days after the verdicts of guilty were returned and fourteen days after sentences were imposed, the Clerk of the District Court received through the mails an envelope containing two letters to the court signed by Fallen. The envelope bore a Government frank but was not postmarked with a date or otherwise. Each of the enclosures was dated January 23, 1962. One of these read:

"I would like to appeal the court\'s decision in my case.
"I would like to get the court record as a pauper."

The other was of this tenor:

"Since I haven\'t heard from the lawyer I would like for this letter to ask for `A Motion for a New Trial.\'
"The basis for the new trial is that the trial judge erred in his charge to the jury — also the evidence did not warrant conviction on those charges."

When these papers came into the hands of the Clerk of the Court on January 29, 1962, Judge Reeves had left Jacksonville. The matter came to the attention of Chief Judge Bryan Simpson who conferred with Mr. Joel S. Moss, who as court-appointed counsel had represented Fallen at the trial. Mr. Moss, by a letter dated and delivered on January 30, 1962, stated to Judge Simpson that after Fallen was sentenced he and Fallen talked for about an hour and a half and during the conversation Fallen had said that he thought he could raise sufficient funds to pay an attorney to represent him in an appeal, should he decide to take one. His counsel declined and suggested to Fallen that he secure another attorney without delay so as not to forfeit his right to appeal. Fallen stated to his counsel that he would procure another attorney. Mr. Moss concluded his letter with the statement that since the conversation on the day of the sentence he had not represented Fallen.

On February 1, 1962, Judge Simpson entered an order styled "Order with Respect to Notice of Appeal" although in its operation, related primarily to the motion for a new trial. Because of the need for making reference to this order, it is set out in a footnote.1 The order directed that a copy of the two Fallen letters, of the letter from Mr. Moss, and of the order, be placed in each of the two cases. Moss was reappointed to represent Fallen in presenting to Judge Reeves the question of whether the motion for a new trial was timely filed and, if so, whether it should be granted. The United States Attorney was directed to place the matter before Judge Reeves for consideration and to give notice. The matter came before Judge Reeves and on February 21, 1962, he entered an order denying the motion for new trial on the merits and expressly declining to rule upon the question as to whether the motion was timely filed. On the same day, February 21, 1962, a notice of appeal was filed by Mr. Moss. An affidavit of Fallen was filed in support of an application to appeal in forma pauperis and an order was entered granting the application. The Government moved to dismiss the appeal on the ground that there was no timely filing of a notice of appeal. Fallen filed, on March 7, 1962, an affidavit reciting that he did not see Mr. Moss between January 11, 1962, the date of his conviction, and January 15, 1962, the date he was sentenced, that he was, after being sentenced, returned to Duval Medical Center in Jacksonville2 under guard and without visitors, that he was taken to Atlanta on January 16, 1962, where, due to illness and processing he was "unable to write to the court requesting a new trial until the 23rd day of January, 1962." In order that the expense of the preparation of a record might be avoided in the event the appeal must be dismissed, the cause was specially set on the motion to dismiss, other counsel was appointed to represent Fallen, and the jurisdictional question was argued.

The Rules fix the time within which an appeal can be taken. They provide:

"An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion. When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. An appeal by the government when authorized by statute may be taken within 30 days after entry of the judgment or order appealed from." Rule 37(a) (2), Fed. Rules Crim.Proc., 18 U.S.C.A.

The Court may not enlarge the time for taking an appeal, nor for filing a motion for a new trial. Rule 45(b) Fed.Rules Crim.Proc., 18 U.S.C.A. The motion for new trial was not filed, nor does it bear a date until after the expiration of the five-day period prescribed by Rule 33, Fed.Rules Crim.Proc., 18 U.S.C.A. The district court should have determined whether or not it had jurisdiction and if it had none it should have dismissed or denied the motion without undertaking to pass upon the merits. United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263. It seems clear that the district court had no jurisdiction to consider the motion since more than twice the permitted time had expired. Miller v. United States, 5th Cir. 1943, 134 F.2d 485; Marion v. United States, 9th Cir. 1949, 171 F.2d 185, cert. den. 337 U.S. 944, 69 S.Ct. 1500, 93 L.Ed. 1747. Since there was an absence of jurisdiction to consider the motion, the filing of it did not toll nor did the purported ruling upon the merits of it extend the time for filing the notice of appeal. United States v. Bertone, 3rd Cir. 1957, 249 F.2d 156; Kirksey v. United States, D.C.Cir.1954, 94 App.D.C. 393, 219 F.2d 499, cert. den. 358 U.S. 848, 79 S.Ct. 74, 3 L.Ed.2d 82. The Bertone case was followed by this Court in Lott v. United States, 5th Cir. 1960, 280 F.2d 24, rev. other grounds, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940. If we have any jurisdiction to consider and decide the appeal it must be because of the notice of appeal dated January 23, 1962, and received by the Clerk on January 29, 1962, and not by reason of the notice of appeal filed February 21, 1962, after the order on the motion for new trial had been entered.

Although one who has been convicted of a criminal offense has a right to have his conviction reviewed, he must, in order to exercise that right, meet the time requirements of the procedural steps for perfecting his appeal, the first of which is the giving of a timely notice of appeal and without which the Court of Appeals has no jurisdiction. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21; United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed. 2d 259.

It has been urged that the district court was required3 to advise Fallen of his right to appeal. There is merit in the suggestion if it can be said that the court-appointed counsel, who had stood by Fallen's side and had spoken on his behalf while he was being sentenced, somehow disappeared eo instanti, during the time the sentence was being pronounced so that it could be said that Fallen was not represented by counsel when the court imposed sentence. The record of the judgments and commitments shows that "On this 15th day of January, 1962, came the attorney for the government and the defendant appeared in person and by counsel, Joel Moss, court appointed * * *." Fallen's court-appointed counsel did not think his representation had terminated until the conclusion of the hour and a half conference between attorney and client following the imposition of sentence, as appears from his letter to Judge Simpson. The Supreme Court, discussing this question, has said:

"The salutary purpose of this provision Rule 37(a) (2) may, however, not be achieved when the defendant appears at sentencing with counsel. If neither counsel, whether retained or court appointed, nor the district judge imposing sentence, notifies the defendant of the requirement for filing a prompt notice of appeal, the right of appeal may irrevocably
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  • U.S. v. Ferrer
    • United States
    • U.S. Court of Appeals — First Circuit
    • 23 Enero 1980
    ...cases cited by the Advisory Committee, Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964); Fallen v. United States, 306 F.2d 697 (5th Cir. 1962), Rev'd, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964); United States v. Isabella, 251 F.2d 223 (2d Cir. 1958), the ......
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    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 8 Julio 1964
    ...Circuits: Kirksey v. United States, 94 U.S.App.D.C. 393, 219 F.2d 499; United States v. Bertone, 3 Cir., 249 F.2d 156; Fallen v. United States, 5 Cir., 306 F.2d 697, cert. granted 374 U.S. 826, 83 S.Ct. 1882, 10 L.Ed.2d 1050; Lott v. United States, 5 Cir., 280 F.2d 24, rev'd on other ground......
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    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 14 Marzo 1978
    ...pickup schedule. Noting that the 10 day requirement was jurisdictional, the Court of Appeals dismissed the appeal. Fallen v. United States, 306 F.2d 697 (5th Cir. 1962). But the Supreme Court reversed because, (A)lthough the Government had the opportunity, it introduced no evidence and admi......
  • United States v. Grimes
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 18 Mayo 1970
    ...court after the usual ten-day period. Fallen v. United States, 1964, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760, reversing 5th Cir. 1962, 306 F.2d 697; see Rule 4(a), F.R.A.P. Accordingly we adjudicate this direct appeal on its The appellant has stated his contentions of invalidity of the ......
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