U.S. v. Lewis, s. 75-2836

• Decision Date: 29 October 1975
• Docket Number: Nos. 75-2836,75-3843,s. 75-2836
• Citation: 522 F.2d 1367
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur Willie LEWIS, and Reginald Reese Robinson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1367

522 F.2d 1367

UNITED STATES of America, Plaintiff-Appellee, v. Arthur Willie LEWIS, and Reginald Reese Robinson Defendants-Appellants.

Nos. 75-2836, 75-3843.

United States Court of Appeals Fifth Circuit.

Oct. 29, 1975.

George W. Cameron, Jr., Montgomery, Ala. (Court-Appointed), for defendants-appellants.

Ira DeMent, U. S. Atty., Milton L. Moss, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before THORNBERRY, MORGAN and RONEY, Circuit Judges.

PER CURIAM:

This matter comes to us styled as a "petition to dissolve order of district court dismissing appeal" of appellant, Reginald Reese Robinson. This petition was filed under docket number 75-2836, the number assigned to Robinson's appeal which the district court dismissed. Robinson has also filed a separate notice of appeal from the order of the United States District Court for the Middle District of Alabama dismissing his appeal from his conviction for violating certain federal criminal provisions. That appeal has been assigned docket number 75-3843. In the interest of justice we have consolidated these two matters, See F.R.A.P. 3(b), and remand to the district court for further proceedings.

Robinson and one of his co-defendants, Arthur Willie Lewis, were convicted of violation of 18 U.S.C.A. § 371 and 26 U.S.C.A. § 5861(c), (d) and (f) on June 6, 1975. Both men were represented at trial by the same court-appointed counsel. Lewis filed a timely notice of appeal. Robinson, however, did not file a notice of appeal until July 15, 1975, well beyond the 10 day period allowed to criminal defendants by F.R.A.P. 4(b), but within the additional 30 day period provided for by Rule 4(b) upon a showing of excusable neglect. As the district court recognized, Robinson seeks review of substantially the same alleged errors as those presented by Lewis' appeal. Nevertheless, on August 13, 1975, the district court entered an order dismissing Robinson's appeal. The court specifically found that "(n)o facts are alleged . . . justifying a finding of excusable neglect or an extension of time by this Court."

Although we have some doubt as to whether the district court had power to dismiss the appeal, See Hogg v. United States, 411 F.2d 578 (6th Cir. 1969), we pretermit that question in reaching our decision. Since the notice of appeal was unquestionably not timely filed, we would have had to do the same thing the district court did, I. e., dismiss the appeal, since "unless an appeal is timely taken the reviewing court lacks jurisdiction to hear it." 9 Moore's Federal Practice P 204.02(1), at 906 (2d ed. 1973). Absent a finding of excusable neglect by the district court, we cannot consider Robinson's appeal.

The district court's order dismissing the appeal recited that no facts had been alleged which justified a finding of excusable neglect. In reviewing this determination we are governed by the "abuse...