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    Benny Peoples v. United States, 324 F.2d 689, 10th Cir. (1963)

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    1) The appellant, Benny Peoples, was convicted of bank robbery and sentenced on December 21, 1962. No notice of appeal was filed within the required 10 day period. 2) Over two months later, the appellant wrote to the court clerk inquiring about his case and stating his attorney had not responded to him. 3) The trial court subsequently considered the appellant's oral statement at sentencing that he wanted to appeal in forma pauperis as sufficient notice, but the appellate court ruled this did not meet the requirements of the rule for filing notice of appeal. 4) As no proper notice of appeal was filed, the appeal was dismissed, depriving the appellant of his right to appeal. The conduct of

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    Benny Peoples v. United States, 324 F.2d 689, 10th Cir. (1963)

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    1) The appellant, Benny Peoples, was convicted of bank robbery and sentenced on December 21, 1962. No notice of appeal was filed within the required 10 day period. 2) Over two months later, the appellant wrote to the court clerk inquiring about his case and stating his attorney had not responded to him. 3) The trial court subsequently considered the appellant's oral statement at sentencing that he wanted to appeal in forma pauperis as sufficient notice, but the appellate court ruled this did not meet the requirements of the rule for filing notice of appeal. 4) As no proper notice of appeal was filed, the appeal was dismissed, depriving the appellant of his right to appeal. The conduct of

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    Filed: 1963-11-29 Precedential Status: Precedential Citations: 324 F.2d 689 Docket: 7488

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    1) The appellant, Benny Peoples, was convicted of bank robbery and sentenced on December 21, 1962. No notice of appeal was filed within the required 10 day period. 2) Over two months later, the appellant wrote to the court clerk inquiring about his case and stating his attorney had not responded to him. 3) The trial court subsequently considered the appellant's oral statement at sentencing that he wanted to appeal in forma pauperis as sufficient notice, but the appellate court ruled this did not meet the requirements of the rule for filing notice of appeal. 4) As no proper notice of appeal was filed, the appeal was dismissed, depriving the appellant of his right to appeal. The conduct of

    Copyright:

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    Download as PDF or read online from Scribd
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    26 views3 pages

    Benny Peoples v. United States, 324 F.2d 689, 10th Cir. (1963)

    Uploaded by

    Scribd Government Docs
    1) The appellant, Benny Peoples, was convicted of bank robbery and sentenced on December 21, 1962. No notice of appeal was filed within the required 10 day period. 2) Over two months later, the appellant wrote to the court clerk inquiring about his case and stating his attorney had not responded to him. 3) The trial court subsequently considered the appellant's oral statement at sentencing that he wanted to appeal in forma pauperis as sufficient notice, but the appellate court ruled this did not meet the requirements of the rule for filing notice of appeal. 4) As no proper notice of appeal was filed, the appeal was dismissed, depriving the appellant of his right to appeal. The conduct of

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    of 3

    324 F.

    2d 689

    Benny PEOPLES, Appellant,


    v.
    UNITED STATES of America, Appellee.
    No. 7488.

    United States Court of Appeals Tenth Circuit.


    November 29, 1963.

    George Miller, Oklahoma City, Okl., for appellant.


    Jack R. Parr, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on brief),
    for appellee.
    Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.
    PER CURIAM.

    Despite the commendable efforts of the trial Court to save this appeal, it must
    be dismissed for failure to file notice thereof within the ten (10) day period
    prescribed by Rule 37(a) (2). The salient facts are that the defendant, Benny
    Peoples, was convicted by a jury verdict for violation of 18 U.S.C. 2113(a), i.
    e., unlawfully entering a bank with intent to commit a felony. On December 21,
    1962, the defendant appeared with his retained counsel, and formal sentence
    was imposed. No further pleadings or papers were filed with the Clerk until
    more than two months after the imposition of sentence, at which time the
    defendant wrote to the Clerk from the Federal Penitentiary in Atlanta, Georgia,
    stating his attorney's name, and that "I have written him but can't get no answer.
    I would like two no if my case has ben file with you." The District Court Clerk
    replied, "A notice of appeal was not filed in your case." A few days later the
    defendant wrote to the sentencing Judge, stating that at the time of sentence he
    had asked "* * * your Honor if I could appeal my case in forma pauperis. My
    Attorney * * * informed me right in open court that he would perfect this
    appeal in my behalf." Thereafter, the trial Court entered an Order which recited
    that at the time of the imposition of sentence, the defendant had stated that "* *
    * he would like to appeal in forma pauperis;" that "[n]othing was said by the
    Court in response to the statement made by the defendant, nor did the attorney

    for the defendant make any comment concerning an appeal;" nor had the
    attorney filed any pleadings in the case since the time of trial or requested leave
    to withdraw from representing the defendant. After "considering all the facts
    and circumstances," the trial Court concluded that "* * * the oral notice of
    appeal given in open court and the letters in connection thereto [be] considered
    as sufficient notice of appeal" and that "the defendant's request to proceed in
    forma pauperis [be] * * * granted." Upon this certificate, the appeal was
    allowed in forma pauperis, and able appointed counsel filed a brief, argued the
    case on its merits, and resisted the motion to dismiss.
    2

    We must first consider the motion to dismiss the appeal, for the filing of notice
    within the ten (10) day period prescribed by Rule 37(a) (2) is, of course,
    "mandatory and jurisdictional," and cannot be enlarged for "excusable neglect"
    under Rule 45(b). United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4
    L.Ed.2d 259. The decisive question is, as the trial Court recognized, whether
    the defendant's oral statement at the time of sentence is sufficient compliance
    with the requirements of Rule 37 (a), which provides that an appeal to the Court
    of Appeals "* * * is taken by filing with the clerk of the district court a notice
    of appeal in duplicate." The notice "* * * shall set forth the title of the case, the
    name and address of the appellant and of the appellant's attorney, a general
    statement of the offense, a concise statement of the judgment or order, giving
    its date and any sentence imposed, the place of confinement if the defendant is
    in custody and a statement that the appellant appeals from the judgment or
    order. The notice of appeal shall be signed by the appellant or appellant's
    attorney, or by the clerk if the notice is prepared by the clerk as provided by
    paragraph (2) of this subdivision."1

    The Rule is simple and facile, and substantial compliance will undoubtedly
    meet its requirements. See: Halfen v. United States (10 C.A.), 324 F.2d 52. But
    even though the requirements of the Rule be liberally construed, the orderly
    administration of justice demands that the notice contain sufficient information
    to inform the Court and the government that an appeal is being taken, so that
    the Rules of the court, with respect to the perfection of an appeal, may be duly
    observed. We cannot agree with the trial Court that the oral statement of the
    defendant that he would like to appeal his case in forma pauperis, is sufficient
    to put the Court and the government on notice that an appeal has been taken, in
    accordance with the intendment of the Rule.

    The result of the dismissal is to deprive the defendant of his right to appeal,
    regardless of the merits of his case, and tends to reflect discredit on the
    professional conduct of retained counsel. In these circumstances, it seems
    appropriate to formally advise counsel of the disposition of the case, and afford

    him an opportunity to make appropriate response. The Clerk of the Court is


    accordingly directed to transmit a copy of this statement to counsel of record in
    the trial court.
    5

    Dismissed.

    Notes:
    1

    Rule 37(a) (2) provides: "When a court after trial imposes sentence upon a
    defendant not represented by counsel, the defendant shall be advised of his
    right to appeal and if he so requests, the clerk shall prepare and file forthwith a
    notice of appeal on behalf of the defendant. * * *"

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