United States v. Meyers

Decision Date31 January 1969
Docket NumberNo. 12653.,12653.
Citation406 F.2d 1015
PartiesUNITED STATES of America, Appellee, v. Dennis Mark MEYERS, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Frederick H. Creekmore (Court-appointed counsel), Chesapeake, on brief, for appellant.

C. V. Spratley, Jr., U. S. Atty., and James A. Oast, Jr., Asst. U. S. Atty., on brief, for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.

PER CURIAM.

In this appeal, in which we deemed oral argument unnecessary, it appears that defendant was convicted of a violation of the Dyer Act, 18 U.S.C.A. § 2312. On March 29, 1968, he was sentenced to a three-year term, under the provisions of 18 U.S.C.A. § 4208(a) (2). Notwithstanding that he was represented by court-appointed counsel, he was advised by the district judge of his right to appeal within ten days, and that if he could not employ but desired counsel, counsel would be furnished to him. He was further told that if he wished to appeal, he should notify the clerk, or notify the Court, within ten days, and a notice of appeal would be filed for him.

Nothing further was heard from the defendant until May 31, 1968, when a letter, dated May 25, 1968, written from the Federal Reformatory, at Petersburg, Virginia, was received by the district judge. The letter contained a clear manifestation of the desire to appeal, acknowledged that defendant had been given ten days after sentence in which to appeal, but stated that defendant's attempt to telephone the district judge of his desire to appeal was abortive and defendant's letters to the same effect were returned to defendant. Defendant wrote the district judge again, under date of June 8, 1968, about an appeal, but this letter contained no further comment as to why the appeal was delayed. Initially, the district judge accepted the letters of May 25 and June 8 as a notice of appeal, although not timely filed; but, by an order entered June 19, 1968, the district judge struck out the notice of appeal, concluding that he was without jurisdiction to extend the time for filing notice of appeal, as provided in Rule 37, Fed.R.Crim.P. It is from this order that this appeal is taken.

Of course, the original ten-day appeal period prescribed by Rule 37(a) (2), Fed.R.Crim.P. is jurisdictional.* United States v. Temple, 372 F.2d 795 (4 Cir. 1966), cert. den. 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967). But, with commendable candor, the government concedes that, under Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), and United States v. Temple, supra, if there is substance in defendant's statement that he attempted to exercise his right to appeal within the ten-day period...

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4 cases
  • Rothman v. U.S., 74-1240
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 11, 1974
    ...Response to Appellee's Motion to Dismiss Appeal as Out of Time, at 2.23 See 378 U.S. at 143-144, 84 S.Ct. 1689.24 United States v. Meyers, 406 F.2d 1015 (4th Cir. 1969). See Caylor v. United States, 362 F.2d 689 (10th Cir. 1966); Kent v. United States, 423 F.2d 1050 (5th Cir. 1970). See als......
  • State v. Gonzales, 1026
    • United States
    • Court of Appeals of New Mexico
    • February 23, 1973
    ...Evans v. Jones, 366 F.2d 772 (4th Cir. 1966); Reed v. People of State of Michigan, 398 F.2d 800 (6th Cir. 1968); United States v. Meyers, 406 F.2d 1015 (4th Cir. 1969); Contra, Guido v. Ball, 367 F.2d 882 (2nd Cir. 1966). See, Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969) where trial cour......
  • Heilman v. United States, 16628.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 10, 1969
  • United States v. Tallman
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 28, 1971
    ...court to help him perfect his appeal. By order dated May 8, 1970, this court found it appropriate to follow United States v. Meyers, 406 F.2d 1015, 1016 (4th Cir. 1968), where the court of appeals remanded the case to the district court for a determination of whether the defendant should be......

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