Miller v. United States, 10522.
| Decision Date | 25 March 1943 |
| Docket Number | No. 10522.,10522. |
| Citation | 134 F.2d 485 |
| Parties | MILLER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wm. Roy Miller, in pro. per. for appellant.
William R. Eckhardt, III., Asst. U. S. Atty., of Houston, Tex., for appellee.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
William Roy Miller and Robert W. Cole were tried and convicted on six counts of an indictment which charged them with violations of 18 U.S.C.A. § 347. Sentence was entered by the court on March 14, 1939. An appeal to this court was dismissed because Miller v. United States, 5 Cir., 104 F.2d 343, certiorari denied 308 U.S. 549, 60 S.Ct. 87, 84 L.Ed. 462. Miller then filed in this court a petition for writ of certiorari to the District Court, and on December 5, 1941, the petition was denied. Cause No. 10152 on our docket. His petition for writ of certiorari was denied by the Supreme Court on February 2, 1942, 315 U.S. 799, 62 S.Ct. 626, 86 L. Ed. 1200.
On July 11, 1942, Miller filed in the District Court a motion styled "Extraordinary Motion to Set Aside Judgment and Sentence and Grant a New Trial", in which he alleged that he had been deprived of a fair and impartial trial and an appeal, and that as a consequence the judgment and sentence of the court was "void to such an extent as to entitle plaintiff to a new trial, Rule II of the Rules of Practice and Procedure in Criminal Cases notwithstanding." This motion was denied by the District Court on November 6, 1942. Miller is now attempting to appeal from and reverse the order which overruled his motion for a new trial.
Certain it is that the District Court had no jurisdiction to hear and decide a motion for a new trial except as provided by Rule 2 of the Rules of Criminal Procedure which provide that motions for new trial must be made within three days after verdict or finding of guilt. Miller's motion was filed on July 11, 1942, more than three years after entry of judgment of conviction, and was much too late. Flowers v. United States, 86 F.2d 79.
Miller now insists that the record on his former appeal did not reveal the real facts regarding the taking of the appeal, and out of an abundance of caution we have carefully examined not only the record on this appeal but also the record on the former appeal which was dismissed...
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Fallen v. United States
...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 ......
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Young v. United States
...courts, has been excluded by the Rules of Procedure in Criminal Cases after Verdict, 18 U.S.C.A. following section 688. Miller v. United States, 5 Cir., 134 F.2d 485. But if such a remedy still exists, permission to file it will not be granted by an appellate court which has affirmed a conv......
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Marion v. United States, 11837.
...requirement as to the time contained in Rules 33 and 34 in which a motion can be made is jurisdictional. In the case of Miller v. United States, 5 Cir., 134 F.2d 485, it was held that under Rule II of the criminal appeals rules of 1933, 292 U.S. 661, that a district court was without jurisd......
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Miller v. Sanford, 11310.
...certiorari, 315 U.S. 799, 62 S.Ct. 626, 86 L.Ed. 1200. Appellant then made his third effort in this court in cause No. 10,522, Miller v. United States, 5 Cir., 134 F.2d 485, by an appeal from a judgment denying "an extraordinary motion to set aside the judgment and sentence and grant a new ......