Petitioner appeared for sentencing on January 15, 1962, with his
court-appointed attorney. After sentences aggregating 20 years were
imposed, petitioner asked the court if he could appeal "as an
insolvent," and was advised that he could. His attorney then
withdrew from the case, and petitioner was transported to hospital
facilities away from the place of trial. On January 29, 14 days
after sentencing, the clerk received letters from petitioner asking
for a new trial and for an appeal. The letters were dated January
23 by petitioner, and, if actually mailed by him on that date,
would in the normal course of events have been received by the
clerk within the 10-day requirement of Rule 37(a) of the Federal
Rules of Criminal Procedure. The Court of Appeals dismissed
petitioner's appeal, however, because the letters were not actually
received within that time.
Held:
1. The Federal Rules of Criminal Procedure should not be
inflexibly applied without regard to the circumstances. P.
378 U. S.
142.
2. As far as this record discloses, petitioner, who was without
the benefit of counsel, did all that could reasonably be expected
to file his appeal within the allotted time, and accordingly he
should not be barred from having his appeal heard on the merits.
Pp.
378 U. S.
142-144.
306 F.2d 697, reversed and case remanded.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
At issue in this case is whether petitioner's notice of appeal
was filed within the time specified by Rule 37(a)(2) of the Federal
Rules of Criminal Procedure.
Page 378 U. S. 140
Petitioner was convicted on January 11, 1962, of violations of
the postal laws. [
Footnote 1]
Four days later -- on January 15 -- he appeared for sentencing with
the attorney who had been appointed to represent him at trial.
Consecutive sentences aggregating 20 years were imposed, after
which the defendant asked if he could appeal the case "as an
insolvent." The sentencing judge replied:
"Oh, yes, you always have a right to appeal; the Government
provides for that."
"So that will be all. We are through with this case."
"Mr. Marshal, you may take charge of the defendant."
Before he was taken out of the building, petitioner was given an
opportunity to consult with his court-appointed attorney. According
to the attorney's later recollection, petitioner asked him at that
time if he would be interested in representing him on an appeal.
The attorney responded that his firm did not want him to undertake
any further criminal matters, and that it would thus be best for
petitioner to secure another attorney promptly, so as not to
forfeit his right to appeal. The attorney recalled that this
conference lasted for about an hour and a half -- petitioner, that
it lasted for only a few minutes. In any event, petitioner was then
taken back to the medical center at which he had been quartered
during the trial. [
Footnote 2]
Early the next morning, he was transferred to hospital facilities
at Atlanta to commence his sentence. At neither place was he
permitted to have visitors.
Page 378 U. S. 141
On January 29, 14 days after sentencing, the clerk of the court
in which petitioner had been convicted received letters from
petitioner asking for a new trial and for an appeal. The letters
were dated January 23 by petitioner, and were mailed in a single
envelope which bore a government frank but no postmark. No
communications had been received in the interim from either
petitioner or his court-appointed counsel.
The chief judge of the district then reappointed the same
attorney for the purpose of presenting the motion for a new trial
to the trial judge at a hearing which was set for that purpose. In
due course, the motion was denied on the merits, the time question
having been argued but not decided. On the same day, petitioner's
reappointed attorney filed a notice of appeal, and petitioner was
granted leave to appeal
in forma pauperis. Thereafter, a
new attorney was appointed to represent petitioner before the Court
of Appeals, and the case was set for hearing on the Government's
motion to dismiss the appeal because the notice was not timely
filed.
A divided Court of Appeals held, first, that petitioner's motion
for a new trial was not timely filed, and that the consideration of
the motion on the merits by the trial judge was in error, and thus
could not serve to extend the time for filing a notice of appeal.
[
Footnote 3] It then held that
the time for filing the notice began on January 15, when petitioner
was sentenced, and expired when, on January 25, the clerk had not
received the notice. 306 F.2d 697. We granted certiorari, 374 U.S.
826, to consider whether the restrictive reading of the Rules by
the court below was justified under the circumstances of this case.
We have concluded that it was not, and accordingly remand
Page 378 U. S. 142
the case for a disposition of petitioner's appeal on the
merits.
Rule 37(a) provides that "[a]n appeal by a defendant may be
taken within 10 days after entry of the judgment or order appealed
from . . . ," and that an appeal is taken "by filing with the clerk
of the district court a notice of appeal. . . ." The Court of
Appeals has read this to mean that, irrespective of the reason for
the delay, the notice of appeal must actually be in the hands of
the clerk on or before the 10th day. Since the timely filing of a
notice of appeal is a jurisdictional prerequisite to the hearing of
the appeal, the court thus felt powerless to do anything but to
dismiss.
Overlooked, in our view, was the fact that the Rules are not,
and were not intended to be, a rigid code to have an inflexible
meaning irrespective of the circumstances. Rule 2 begins with the
admonition that
"[t]hese rules are intended to provide for the just
determination of every criminal proceeding. They shall be construed
to secure simplicity in procedure, fairness in administration, and
the elimination of unjustifiable expense and delay."
That the Rules were not approached with sympathy for their
purpose is apparent when the circumstances of this case are
examined.
In the first place, in spite of the promise of the Rule,
[
Footnote 4] petitioner was
forced to take his appeal without the assistance of counsel. He was
whisked away from the place of trial (Jacksonville, Florida) on the
day after he was sentenced, and, as he tells it without
contradiction in the
Page 378 U. S. 143
record, not permitted to have visitors, nor afforded the
opportunity to secure another attorney. In addition to his normal
physical problems, he was ill, [
Footnote 5] and was thus confined in a hospital both in
Jacksonville and in Atlanta.
It was not until January 23, as he tells it, again without
contradiction in the record, that he felt well enough to write.
Acting without advice as to the requirements of time, except that
which he could acquire from other inmates, he then wrote two
letters asking for a new trial and for the appeal which the trial
judge promised that "the Government provides." These letters were
promptly mailed on January 23, for all the record shows, and by
coincidence, no doubt, would thus, in the normal course of events,
have been received by the clerk within the 10 days. [
Footnote 6]
That they were not received within 10 days, however, is perhaps
explained by the Government's disclosure at oral argument that mail
pickups at Atlanta at that time occurred only twice a week, on
Tuesdays and Fridays. Thus, if petitioner deposited the letters
with prison authorities after the hour of pickup on January 23, a
Tuesday -- and there is nothing in the record to show that anyone
took the trouble to tell him about such mailing delays -- his
letters would not have been placed in the mail by prison
authorities until Friday. They thus probably would not have been
received by the clerk's office until Monday, the 29th, the day on
which they were actually marked received by the clerk.
But whether or not this in fact occurred, there is no reason on
the basis of what this record discloses to doubt that petitioner's
date at the top of the letter was an accurate one, and that
subsequent delays were not chargeable
Page 378 U. S. 144
to him.
Cf. Rosenbloom v. United States, 355 U. S.
80. There is no postmark on the envelope, nor any
indication of the time at which the envelope came into the hands of
prison officials. Other letters also mailed by petitioner from the
prison took an equally long time to get to their destination. And,
although the Government had the opportunity, it introduced no
evidence -- and admitted on oral argument that it had none -- to
dispute the record facts that petitioner had done all that could
reasonably be expected to get the letter to its destination within
the required 10 days. Since petitioner did all he could under the
circumstances, we decline to read the Rules so rigidly as to bar a
determination of his appeal on the merits.
The judgment of the Court of Appeals is reversed, and the case
remanded for a prompt disposition of the appeal on the merits.
It is so ordered.
[
Footnote 1]
Specifically, 18 U.S.C. ยงยง 371, 641, 2115.
[
Footnote 2]
As the result of an automobile accident in 1951, petitioner is a
paraplegic confined to a wheelchair. In addition to complications
which have resulted from his affliction, petitioner was at the time
of sentencing suffering from the flu. He was kept in medical
facilities, it appears, more because of his flu than his more
permanent condition.
[
Footnote 3]
Rule 37(a)(2) provides that, if a motion for new trial is made
within the 10 days during which an appeal must be taken, the appeal
from the judgment of conviction may be taken within 10 days from
the denial of the motion.
[
Footnote 4]
Rule 37(a)(2) provides that,
"[w]hen 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."
(Emphasis added.) Although counsel was physically present at
sentencing, it is an open question whether petitioner was
"represented" by counsel within the meaning and purpose of the
Rule.
[
Footnote 5]
See note 2
supra.
[
Footnote 6]
January 23 was the eighth day after sentencing, and the parties
are agreed that a letter mailed on the 23d in Atlanta would
normally be received in Jacksonville by the 25th.
MR. JUSTICE STEWART, whom MR. JUSTICE CLARK, MR. JUSTICE HARLAN
and MR. JUSTICE BRENNAN join, concurring.
I think that, for purposes of Rule 37(a)(2), a defendant
incarcerated in a federal prison and acting without the aid of
counsel files his notice of appeal in time, if, within the 10-day
period provided by the Rule, he delivers such notice to the prison
authorities for forwarding to the clerk of the District Court. In
other words, in such a case, the jailer is, in effect, the clerk of
the District Court within the meaning of Rule 37. If all we had to
go on in this case was the date the petitioner wrote at the top of
his letter, I think we should remand the case for resolution of the
factual question as to when the letter was actually delivered to
the prison authorities for mailing. But government counsel
expressly conceded during oral argument that the petitioner in fact
entrusted his notice of appeal
Page 378 U. S. 145
to the prison authorities within the 10-day period. Moreover, we
were advised by counsel that procedures have now been inaugurated
at the federal prisons to make certain that the exact time of
receipt will be marked on all papers that are filed with the
authorities for mailing. For these reasons, I concur in the
judgment of the Court, remanding the case for a prompt disposition
of the appeal on the merits.