Everett Robinson v. United States of America, (Three Cases) , 345 F.2d 1006 ( 1965 )

345 F.2d 1006

Everett ROBINSON, Appellant,
v.
UNITED STATES of America, Appellee (three cases).

Nos. 7746-7748.

United States Court of Appeals Tenth Circuit.

May 26, 1965.

Jack Dalton, Jetmore, Kan. (Tom Harley and George E. Grist, Wichita, Kan., Van Smith, Jetmore, Kan., and Tom Harkness, Ness City, Kan., on the brief), for appellant.

Newell A. George, U.S Atty., District of Kansas (Melvin M. Gradert, Asst. U.S. Atty., Wichita, Kan., on the brief), for appellee.

Before PICKETT and HILL, Circuit Judges, and CHRISTENSEN, District judge.

PICKETT, Circuit Judge.

1

The appellant Robinson was charged in three multiple-count indictments with violation of the Packers and Stockyards Act, 7 U.S.C. 181 et seq., and conspiracy. Motions to dismiss the indictments were denied. Thereafter Robinson, through his attorneys, requested permission to withdraw his plea of not guilty to one count of each indictment and enter a plea of nolo contendere to such counts. With the consent of the United States, the Court accepted the pleas and the United States Attorney dismissed the remaining counts of the indictments. On December 13, 1963, Robinson was sentenced to imprisonment for a period of two years on each of the counts to which nolo contendere pleas were entered, to run concurrently. On January 9, 1964 motions in arrest of judgment and to suspend sentences were filed. These motions were denied on January 14, 1964 and notices of appeal were filed on the same day.

2

Rule 37(a)(2) F.R.Cr.P. provides that a defendant in a criminal case may take an appeal from a judgment or order by the filing of a notice of appeal within 10 days after the entry of the judgment and order. '* * * If a motion for new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion.' See Lujan v. United States, 10 Cir., 204 F.2d 171; Smith v. United States, 10 Cir., 273 F.2d 462, cert. denied 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729. The motions in arrest of judgment were not filed within 10 days after entry of the judgments, therefore the judgments and sentences became final when notice of appeal was not taken within the 10 day period. The law is settled that the taking of an appeal within the time prescribed by the rules is mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. See, also, Fennell v. United States, 10 Cir., 339 F.2d 920; Peterkin v. United States, 10 Cir., 311 F.2d 219; Yates v. United States, 10 Cir., 308 F.2d 737; 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; Hixon v. United States, 10 Cir., 268 F.2d 667.

3

The appeals are dismissed.