Wilkinson v. United States, 6338.
| Decision Date | 20 June 1960 |
| Docket Number | No. 6338.,6338. |
| Citation | 278 F.2d 604 |
| Parties | Oral J. WILKINSON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David K. Watkiss, Salt Lake City, Utah (Calvin L. Rampton, Salt Lake City, Utah, with him on the brief), for appellant.
William J. Adams, Asst. U. S. Atty., Salt Lake City, Utah (A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, with him on the brief), for appellee.
Before PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge.
Certiorari Denied June 20, 1960. See 80 S.Ct. 1600.
The United States moves to dismiss this appeal upon the ground that the notice of appeal was not filed within time. The defendant Wilkinson, after having been found guilty of income tax evasion in violation of Title 26, U.S.C.A., § 145 (b), (I.R.C.1939), and Title 26, § 7201, (I.R.C.1954), appeared before the United States District Court for the District of Utah for sentencing on January 4, 1960 and was sentenced to serve a term of 6 months and to pay total fines of $15,000. On January 6, 1960 the judgment and commitment was filed with the Clerk of the aforesaid court and was entered upon the docket January 7, 1960. A certified copy thereof was mailed to the attorney for the defendant and received in his office sometime during the work week of January 11-15, 1960. On January 21, 1960 notice of appeal was filed.
Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S. C.A., provides that a defendant may take an appeal within 10 days after entry of a judgment or order appealed from. It is conceded that the notice of appeal was not filed within 10 days from either the pronouncement of the sentence from the bench or from the formal entry of the judgment upon the docket. The law is well settled that the taking of an appeal within the prescribed time is mandatory and jurisdictional.1 United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259; Martin v. United States, 10 Cir., 263 F.2d 516; Lujan v. United States, 10 Cir., 204 F.2d 171; Swihart v. United States, 10 Cir., 169 F.2d 808.
Defendant contends the phrase "entry of the judgment," contained in Rule 37, refers to the actual entry on the docket in the clerk's office, but he also urges that the time for appeal does not begin to run until the defendant has actual or constructive knowledge of the entry. The requirement that the defendant have knowledge is said to arise from the district court's procedural custom of mailing copies of formal judgments to defense attorneys. We hold that the...
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U.S. v. Mitchell
...for the filing of a notice of appeal in a criminal case was long considered "mandatory and jurisdictional." Wilkinson v. United States, 278 F.2d 604, 605 (10th Cir.1960) (per curiam) (citing United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)). The Supreme Court......
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U.S. v. Garduno
...notice of appeal from a judgment in a criminal case has long been held as "mandatory and jurisdictional." Wilkinson v. United States, 278 F.2d 604, 605 (10th Cir.1960) (per curiam) (citing United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)).2 The Supreme Court ......
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Yates v. United States
...It is a familiar rule that the taking of an appeal within the prescribed time is mandatory and jurisdictional. Wilkinson v. United States, 10 Cir., 278 F.2d 604, cert. denied, 363 U.S. 829, 80 S.Ct. 1600, 4 L.Ed.2d 1524; Batson v. United States, 10 Cir., 129 F.2d 463. If no appeal is taken ......
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Hilliard v. United States
...354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). 16 Yates v. United States, 308 F.2d 737 (10th Cir. 1962); Wilkinson v. United States, 278 F.2d 604 (10th Cir. 1960), cert. den. 363 U.S. 829, 80 S.Ct. 1600, 4 L.Ed.2d 1524 17 United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d......
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18 APPENDIX U.S.C. § 49 Serving and Filing Papers
...to give notice of entry of judgments (as opposed to orders) since such notice is not required by Rule 49(d). Wilkinson v. United States, 278 F.2d 604 (10th Cir. 1960), cert. den. 363 U.S. 829; Hyche v. United States, 278 F.2d 915 (5th Cir. 1960), cert. den. 364 U.S. 881. The excusable negle......