In the circumstances of this case, the Court of Appeals erred in
holding that petitioner's notice of appeal from his conviction of a
crime was untimely. Therefore, its judgment is reversed, and the
case is remanded for further proceedings consistent with this
246 F.2d 608 reversed and remanded.
The petition for a writ of certiorari is granted. The Court of
Appeals has held, without opinion, that petitioner's notice of
appeal from the District Court, filed on July 8, 1957, was
untimely. The Government has conceded that the Clerk of the
District Court did not mail to petitioner or his attorney a notice
of the entry of the order of June 14 denying petitioner's motion
for a new trial and judgment of acquittal, as required by Rule
49(c), Federal Rules of Criminal Procedure. In our opinion, the
record in this case fails to show with sufficient certainty that
petitioner or his attorney had actual notice of the entry of that
order by reason of the proceedings which took place in the District
Court on June 14. * Cf.
Page 355 U. S. 81
Huff v. United States,
192 F.2d 911; Gonzalez v.
233 F.2d 825, 827, reversed on other
352 U.S. 978. What transpired at those proceedings is
too ambiguous to permit the conclusion that petitioner and his
attorney were not justified in believing that petitioner's time to
appeal would begin to run on July 8. In these circumstances, we
think that the Court of Appeals erred in holding that petitioner's
notice of appeal was untimely. Rule 37(a)(2), Fed.Rules Crim.Proc.;
see Carter v. United States,
168 F.2d 310. The judgment of
the Court of Appeals is reversed, and the case is remanded to that
court for further proceedings consistent with this opinion.
1. The record shows the following:
"THE COURT . . ."
"* * * *"
"Do you want some time for your client before he turns in?"
"MR. SHAW. Your Honor, I was going to ask for some time in which
to get his affairs straightened out, and within which to file an
appeal, should we so desire to do."
"THE COURT. Very well. If you file an appeal, of course, if you
apply for bond, I will tell you now that I will grant you bond. Be
permitted to go under the bond you are under now. How much time do
"MR. SHAW. About two weeks, your Honor."
"THE COURT. How about Monday, July 1st, or do you want it the
8th, the following Monday?"
"MR. SHAW. That will be all right."
"THE COURT. Be given until July 8th."
"MR. SHAW. Thank you."
MR. JUSTICE BURTON, with whom MR. JUSTICE CLARK concurs,
Petitioner was present in open court with his attorney at the
time the court overruled his motion for a new trial. He thus had
actual notice of the denial of his motion, and was not entitled to
rely upon an additional notice in writing from the clerk to the
same effect. The colloquy quoted by the Court took place later,
"after calling other motions in other cases." At that time, this
case "was again called by the Judge and the proceedings as
indicated in the transcript of the official Court reporter took
place." Especially in the light of the time interval
Page 355 U. S. 82
between the denial of the motion and the colloquy quoted in the
opinion, I believe the Court of Appeals was justified in concluding
that petitioner's counsel should have understood that his motion
had been denied on June 14.