U.S. v. Curry, 84-5953
| Decision Date | 29 April 1985 |
| Docket Number | No. 84-5953,84-5953 |
| Citation | 760 F.2d 1079 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roy Francis CURRY and Kenneth Herbert Caiata, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Vincent P. McGhee, McGhee & Sharpe, Miami, Fla., for Curry.
Bronis & Portela, P.A., Stephen J. Bronis, Miami, Fla., for Caiata.
Stanley Marcus, U.S. Atty., Miami, Fla., for United States.
Appeals from the United States District Court for the Southern District of Florida.
Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.
Appellant Curry filed a notice of appeal following a jury verdict of guilty but prior to sentencing and before judgment and conviction were entered. No new notice of appeal was filed after sentencing. The court has raised of its own motion the question of whether it has jurisdiction of Curry's appeal.
In a criminal case the notice of appeal is to be filed in district court within ten days after the entry of the judgment or order appealed from. Rule 4(b) FRAP. In a criminal case the final judgment means the sentence. The sentence is the judgment. Berman v. U.S., 302 U.S. 211, 212-213, 58 S.Ct. 164, 165-66, 82 L.Ed. 204 (1937). We agree with the Seventh Circuit decision in U.S. v. Moore, 616 F.2d 1030 (1980) that in circumstances like those before us the premature notice of appeal is effective to perfect an appeal as of the date the sentence is entered as the judgment. The Seventh Circuit relied upon the fact that the premature notice of appeal gave full notice of the sentence and judgment that the defendant wanted to challenge. It therefore concluded that the premature notice was a mere irregularity governed by Rule 52(a): "Any error, defect or irregularity or variance which does not affect substantial rights shall be disregarded." The court's conclusion was buttressed by the 1979 amendment to Rule 4 FRAP. Rule 4(a) was amended to provide that a notice of appeal in a civil case, filed before the disposition of a post-trial motion, shall have no effect. No similar change was made in paragraph (b), covering appeals in criminal cases.
The Seventh Circuit distinguished U.S. v. Mathews, 462 F.2d 182 (3d Cir.1972), in which after verdict and before sentencing the defendant filed a motion for a new trial. While the motion was pending he filed a notice of appeal from the judgment of conviction entered March 9, 1979 [the date of the verdict], from an order entered the same day denying ...
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...post-trial motions is invalid, the rule governing criminal appeals, Rule 4(b), was not similarly amended. See United States v. Curry, 760 F.2d 1079, 1080 (11th Cir.1985) (noting differences between 4(a)(1) and 4(b)). Rule 4(b) provides in relevant In a criminal case the notice of appeal by ......
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