United States v. Lias, 5865.
Decision Date | 08 March 1949 |
Docket Number | No. 5865.,5865. |
Citation | 173 F.2d 685 |
Parties | UNITED STATES v. LIAS. |
Court | U.S. Court of Appeals — Fourth Circuit |
D. Paul Camiletti, Asst. U. S. Atty., of Wheeling, W. Va. (C. Lee Spillers, U. S. Atty., of Wheeling, W. Va., on the brief), for appellant.
M. E. Boiarsky, of Charleston, W. Va. (Frank A. O'Brien and Frank A. O'Brien, Jr., both of Wheeling, W. Va., and T. C. Townsend, of Charleston, W. Va., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is a motion to dismiss an appeal by the United States from an order which vacated a judgment and sentence theretofore entered in a criminal case, permitted the defendant therein to withdraw his plea of guilty and enter a plea of not guilty and continued the case for hearing at a later day of the court. The government contends that the order was appealable, as an order arresting a judgment of conviction, under 18 U.S.C.A. § 3731. Defendant contends that the order was not one arresting a judgment of conviction but one permitting the defendant to withdraw a plea of guilty pursuant to Rule 32 (d) of the Rules of Criminal Procedure, 18 U.S.C.A. and granting a new trial in the case, and was consequently not a final judgment from which appeal would lie. We think that this contention is unquestionably correct.
The facts are that the defendant was charged with criminal violations of the Internal Revenue Code in an indictment containing five counts. On November 9, 1948, he entered a plea of guilty to the fifth count of the indictment and the other counts were dismissed. Sentence was deferred until November 24, when defendant was sentenced to five years imprisonment and to pay a fine of $10,000. Subsequently he filed an affidavit stating that he was not guilty and that he had been misled by statements made by the trial judge to his attorneys into believing that, if he would plead guilty, he would be placed on probation. He asked that the sentence be set aside and that he be allowed to withdraw his plea of guilty, to enter a plea of not guilty and to stand trial. The judge granted this motion on condition that he waive indictment and stand trial on information on the charges that had been dismissed along with the charge to which the plea had been entered. The judge filed a memorandum in the case in which he set forth the ground of his action as follows:
This action of the judge was in no sense one arresting a judgment of conviction, which puts an end to the case. Arrest of judgment is proper only where it appears upon the face of the record that judgment cannot be legally entered. See, 15 Am.Jur. pp. 98-102; Bishop's New Crim. Procedure 2d ed. 1284; Bond v. Dustin, 112 U.S. 604, 608, 5 S.Ct. 296, 28 L.Ed. 835; Demolli v. United States, 8 Cir., 144 F. 363, 6 L.R.A., N.S., 424, 7 Ann.Cas. 121. The subject is covered by Rule 34 of the Rules of Criminal Procedure, which provides:
Until the enactment of recent statutes, the United States could not appeal from or review by writ of error a judgment in favor of the defendant in a criminal case. United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445. By the Act of March 2, 1907, Ch. 2564, 34 Stat. 1246, a writ of error direct to the Supreme Court was allowed the government from decisions quashing or sustaining a demurrer to an indictment, or arresting a judgment of conviction, where such action was based upon the invalidity or construction of the statute upon which the indictment...
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