United States v. Cecil James Rhodes and John Simmons, A/K/A "Buckeye" , 579 F.2d 366 ( 1978 )

579 F.2d 366

UNITED STATES of America, Plaintiff-Appellee,
v.
Cecil James RHODES and John Simmons, a/k/a "Buckeye",
Defendants-Appellants.

No. 78-1568

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Sept. 1, 1978.

Lloyd S. Marks, Miami, Fla., for defendants-appellants.

Jack V. Eskenazi, U.S. Atty., Barbara D. Schwartz, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before MORGAN, CLARK and TJOFLAT, Circuit Judges.

PER CURIAM:

1

The appellants tendered pleas of guilty to two counts of a four-count indictment. Simmons was given consecutive sentences totalling eight years' incarceration and Rhodes was given consecutive sentences totalling seven years. Eight days later, February 14, 1978, both appellants moved to withdraw their guilty pleas on the ground that the government violated the plea bargain agreement. The district court denied this motion the next day, February 15. The appellants did not file a notice of appeal from that denial until March 9, 1978.

2

Appellants' motion to withdraw their guilty pleas was a part of the original criminal case, not an independent civil action. Their appeal from the district court's denial of this motion was thus untimely under Fed.R.App.P. 4(b), which requires a defendant appealing in a criminal case to file a notice of appeal within 10 days after the entry of the judgment or order appealed from. We remand the case to allow the district court to determine whether excusable neglect entitles appellants to an extension of the time for appeal. See United States v. Guiterrez, 556 F.2d 1217 (5th Cir. 1977).

3

REMANDED.

*

Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co., of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I