Lujan v. United States, 4663.
| Citation | 204 F.2d 171 |
| Decision Date | 05 May 1953 |
| Docket Number | No. 4663.,4663. |
| Parties | LUJAN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Joseph C. Ryan, Albuquerque, N. M. (Arturo G. Ortega, Albuquerque, N. M., on the brief), for appellant.
Edward E. Triviz, Asst. U. S. Atty., Albuquerque, N. M. (Maurice Sanchez, U. S. Atty., Albuquerque, N. M., on the brief), for appellee.
Before BRATTON, MURRAH and PICKETT, Circuit Judges.
This is a criminal case and it is pending on motion of the government to dismiss the appeal. The ground of the motion is that the notice of appeal was filed out of time and that therefore the court is without jurisdiction to entertain the appeal.
On January 16, 1952, the verdict was returned finding appellant guilty. On January 23, sentence was imposed and formal judgment entered. On the same day, the court entered an order purporting to grant appellant leave to file within ten days thereafter a motion for judgment of acquittal notwithstanding the verdict and a motion for new trial. On January 30, both motions were filed. On February 10, both motions were denied. On February 12, a formal order was entered denying the motion for new trial. And on February 16, the notice of appeal was filed.
It is well settled that the filing of a notice of appeal within the time fixed by the Rules of Criminal Procedure, 18 U.S. C., is jurisdictional, and that the filing of the notice out of time does not confer jurisdiction upon the appellate court. United States v. Bloom, 2 Cir., 164 F.2d 556, certiorari denied 333 U.S. 857, 68 S.Ct. 726, 92 L.Ed. 1137; United States v. Froehlich, 2 Cir., 166 F.2d 84; Swihart v. United States, 10 Cir., 169 F.2d 808.
Rule of Criminal Procedure 33 provides in presently pertinent part that a motion for new trial based upon any ground other than newly discovered evidence shall be made within five days after verdict or finding of guilty or within such further time as the court may fix during the five-day period. The motion for new trial in this case was not based upon newly discovered evidence. It was predicated upon other grounds and it was not filed within five days after the finding of guilty. The court entered an order purporting to enlarge the time for the filing of the motion but the order was entered more than five days after the finding of guilty. And after the expiration of the five-day period following the finding of guilty, the court was without jurisdiction to enter the order enlarging the time for the filing of the motion for new trial. Since the motion was not filed within five days after the finding of guilty, and since no order was entered during such five-day period enlarging the time, the motion was filed out of time within the purview of Rule 33. Pugh v. United States, 9 Cir., 197 F.2d 509. But this rule concerns itself solely and exclusively with the time within which a motion for new trial may be filed....
To continue reading
Request your trial
-
United States v. Anthony
...394; Marion v. United States, 9 Cir., 1948, 171 F.2d 185; United States v. Bloom, 2 Cir., 1947, 164 F.2d 556; Lujan v. United States, 10 Cir., 1953, 204 F.2d 171, at page 172. 8 Thompson v. United States, 5 Cir., 1955, 227 F.2d 671, did not reach the question and is not to the contrary. 9 A......
-
Lott v. United States, 238
...administration of the criminal Rules, we granted certiorari. 364 U.S. 813, 81 S.Ct. 63, 5 L.Ed.2d 45. Buttressed by Lujan v. United States, 10 Cir., 204 F.2d 171, and Smith v. United States, 10 Cir., 273 F.2d 462, holding, on similar facts, that Rule 37(a)(2) alone and unaffected by any oth......
-
Smith v. United States
...of a motion for a new trial referred to in Rule 37(a) (2) should be construed to mean a timely motion under Rule 33. In Lujan v. United States, 10 Cir., 204 F.2d 171, we considered this question and held contrary to the present contention of the United States. It is strongly urged upon us t......
-
Dickey v. United States
...the ten-day period specified in Rule 37(a) (2) governs, notwithstanding the five-day provision of Rules 33 and 34. See Lujan v. United States, 10 Cir., 204 F.2d 171. All of the other circuits which have dealt with the problem, including the Ninth, hold that the five-day limit of Rules 33 an......