Peoples v. United States, 7488.

• Decision Date: 29 November 1963
• Docket Number: No. 7488.,7488.
• Parties: Benny PEOPLES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

324 F.2d 689 (1963)

Benny PEOPLES, Appellant, v. UNITED STATES of America, Appellee.

No. 7488.

United States Court of Appeals Tenth Circuit.

November 29, 1963.

George Miller, Oklahoma City, Okl., for appellant.

Jack R. Parr, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on brief), for appellee.

Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.

PER CURIAM.

Despite the commendable efforts of the trial Court to save this appeal, it must be dismissed for failure to file notice thereof within the ten (10) day period prescribed by Rule 37(a) (2). The salient facts are that the defendant, Benny Peoples, was convicted by a jury verdict for violation of 18 U.S.C. § 2113(a), i. e., unlawfully entering a bank with intent to commit a felony. On December 21, 1962, the defendant appeared with his retained counsel, and formal sentence was imposed. No further pleadings or papers were filed with the Clerk until more than two months after the imposition of sentence, at which time the defendant wrote to the Clerk from the Federal Penitentiary in Atlanta, Georgia, stating his attorney's name, and that "I have written him but can't get no answer. I would like two no if my case has ben file with you." The District Court Clerk replied, "A notice of appeal was not filed in your case." A few days later the defendant wrote to the sentencing Judge, stating that at the time of sentence he had asked "* * * your Honor if I could appeal my case in forma pauperis. My Attorney * * * informed me right in open court that he would perfect this appeal in my behalf." Thereafter, the trial Court entered an Order which recited that at the time of the imposition of sentence, the defendant had stated that "* * * he would like to appeal in forma pauperis;" that "nothing was said by the Court in response to the statement made by the defendant, nor did the attorney for the defendant make any comment concerning an appeal;" nor had the attorney filed any pleadings in the case since the time of trial or requested leave to withdraw from representing the defendant. After "considering all the facts and circumstances," the trial Court concluded that "* * * the oral notice of appeal given in open court and the letters in connection thereto be considered as sufficient notice of appeal" and that "the defendant's request to proceed in forma pauperis be * * * granted." Upon this certificate, the appeal was allowed in forma pauperis, and able appointed counsel filed a brief, argued the case on its merits, and resisted the motion to dismiss.

We must first consider the motion to dismiss the appeal, for the filing of notice within the ten (10) day period prescribed by Rule 37(a) (2) is, of course, "mandatory and jurisdictional," and cannot be enlarged for "excusable neglect" under Rule 45(b). United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. The decisive question is, as the trial Court recognized, whether the defendant's oral statement at the time of sentence is sufficient compliance with the requirements of Rule 37 (a), which provides that an appeal to the Court of Appeals "* * * is...