Durel v. United States
| Citation | 299 F.2d 583 |
| Decision Date | 21 May 1962 |
| Docket Number | No. 19338.,19338. |
| Parties | Milton L. DUREL, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Hilary J. Gaudin, E. K. Tillman, New Orleans, La., for appellant.
Peter E. Duffy, Asst. U. S. Atty., New Orleans, La., for appellee.
Before BROWN, WISDOM and BELL, Circuit Judges.
The United States having filed its motion to dismiss the appeal for failure to file a timely notice of appeal, and there being doubt and uncertainty as to the facts which actually occurred in the trial Court, this Court hereby requests that the Honorable Herbert Christenberry, the Trial Judge, prepare and file with this Court through the Clerk of the United States District Court for the Eastern District of Louisiana, a certificate setting forth the facts concerning the giving of notice of appeal, written or oral, the actions, if any, taken by the Court, notations made by Court or Clerk or both in connection therewith including the application for release on bond, the approval, if any, of bail pending the appeal, and any and all other related matters bearing upon or evidencing the giving of a requisite notice of appeal. For the assistance of the trial Court, a duplicate original set of the papers in connection with the motion and response thereto filed in this Court are to be transmitted with this Order. The Trial Judge is to be free to hold such hearings and to obtain from counsel on both sides whatever briefs, memoranda, statements of facts as the Court shall deem helpful to the end that this Court will have full, accurate and detailed information on all significant issues.
Upon consideration of the motion filed by the Government, we are of the opinion that the motion to dismiss the appeal must be granted.
F.R.Crim.P. 37(a) (2), 18 U.S. C.A. provides that "An appeal by a defendant may be taken within 10 days after entry of the judgment * * *." F. R.Crim.P. 45(b) provides that "* * * the court may not enlarge * * * the period for taking an appeal." The history, purpose, and construction of the 45 (b) limitation have been thoroughly dealt with in United States v. Robinson, 1960, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259, and nothing would be gained by repetition here. As shown by the record and as amplified by the certificate of the trial Judge filed pursuant to our request, it is uncontradicted that the...
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United States v. Temple
...of appeal given in open court has generally been held insufficient to constitute filing of notice under Rule 37(a) (1). Durel v. United States, 299 F.2d 583 (5 Cir. 1962); United States v. Isabella, 251 F.2d 223 (2 Cir. 1958). Defendant argues, however, that oral notice of appeal should be ......
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Howard v. United States
...does not comply with the rule. United States v. Temple, supra; O'Neal v. United States, 5 Cir., 264 F.2d 809, 811-812; Durel v. United States, 5 Cir., 299 F.2d 583, 584; United States v. Isabella, 2 Cir., 251 F.2d 223, Defendant urges that the letters he wrote to the presiding judge constit......
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Smith v. United States
...`Pandora's Box.' The same view has been taken by the other courts considering this issue and we conclude it is sound. Durel v. United States, 299 F.2d 583 (5th Cir. 1962); O'Neal v. United States, 264 F.2d 809 (5th Cir. 1959), vacated on other grounds, 272 F.2d 412 (1959); Howard v. United ......