U.S. v. Ramirez, 90-2525
| Decision Date | 20 May 1991 |
| Docket Number | No. 90-2525,90-2525 |
| Citation | 932 F.2d 374 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robinson RAMIREZ, Juvenal Bedolla Rosales and Nicholas Farias Sanchez, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Roland E. Dahlin, II, Federal Public Defender, Thomas S. Berg, Marjorie A. Meyers, Asst. Federal Public Defenders, Houston, Tex., for Ramirez.
Peter V. Curran, Houston, Tex., (Court-Appointed), for Rosales.
Larry M. Lee, Visalia, Cal., for Sanchez.
Paula C. Offenhauser, Asst. U.S. Atty., Houston, Tex., for U.S.
Appeals from the United States District Court for the Southern District of Texas.
Before JOHNSON, SMITH and WIENER, Circuit Judges.
IT IS ORDERED that the motion of Defendant-Appellant, Nicholas Farias Sanchez, to correct or amend his notice of appeal is GRANTED, his notice of appeal henceforth to be read as though the portions he previously struck had never been stricken.
Apparently acting on the advice of his attorney, Sanchez drew a line through and initialed that portion of his typewritten notice of appeal which stated he was appealing his sentence. He left intact that portion which gave notice that he was appealing the judgment. He now requests that this court consider the notice of appeal as it was originally prepared in typewritten form or to permit him to amend the notice to replace the words he canceled.
Rule 3(c) of the Federal Rules of Appellate Procedure states in pertinent part: "The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from...." The first clause of FRAP 3(c), stipulating that the notice of appeal must specify the parties taking the appeal, is jurisdictional; but that issue is not before the court. On the other hand, we broadly construe the second clause of FRAP 3(c), which requires that the notice of appeal designate the judgment or order from which the appeal is taken. Osterberger v. Relocation Realty Service Corp., 921 F.2d 72, 74 (5th Cir.1991) ().
The precise question presented by Sanchez's appeal has not been considered previously by this court. Several of our cases have dealt with notices of appeal in which the appellant failed to designate or "misdesignated" the ruling being appealed. Our most recent decision on such failures or errors note that we liberally construe the order designation portion of Rule 3(c) and, when the intent to appeal an unnamed or mislabeled ruling is apparent (from the briefs or otherwise) and no prejudice results to the adverse party, the appeal is not jurisdictionally defective. Turnbull v. United States, 929 F.2d 173 (5th Cir.1991) (citations omitted).
The instant case, however, does not concern either a "misdesignated" order or a failure to...
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