Under the Federal Rules of Criminal Procedure, the filing of
notice of appeal in a criminal case after expiration of the time
prescribed in Rule 37(a)(2) does not confer jurisdiction upon the
Court of Appeals, even though the District Court, proceeding under
Rule 45(b), has found that the late filing of the notice of appeal
was the result of "excusable neglect." Pp.
361 U. S.
220-230.
(a) To recognize a late notice of appeal is actually to
"enlarge" the period for taking an appeal, which is explicitly
forbidden by Rule 45(b). Pp.
361 U. S.
224-229.
(b) The policy question whether greater flexibility should be
allowed with respect to the time for taking an appeal must be
resolved through the rulemaking process, not by judicial decision,
and it cannot be resolved by the Court of Appeals. Pp.
361 U. S.
229-230.
104 U.S.App.D.C. 200, 260 F.2d 718, reversed.
MR. JUSTICE WHITTAKER delivered the opinion of the Court.
Respondents were indicted for murder in the District Court for
the District of Columbia, and, upon a trial, were found guilty by a
jury of the lesser included offense of manslaughter. After their
motions for a new trial were considered and denied, the court
entered judgment of conviction on May 7, 1958. Twenty-one days
thereafter, on May 28, respondents separately filed in the District
Court
Page 361 U. S. 221
their notices of appeal. On the same day, they each asked, and
were granted by the District Court, leave to prosecute their
appeals
in forma pauperis. On June 30, the Government
moved the Court of Appeals to dismiss respondents' appeals for want
of jurisdiction because their notices of appeal were not filed
within 10 days after entry of the judgment. In opposition to the
motion, affidavits of respondent Travit Robinson and of counsel for
both respondents were filed in the Court of Appeals. They tended to
show that the late filing of the notices of appeal was due to a
misunderstanding as to whether the notices were to be filed by
respondents themselves or by their counsel. [
Footnote 1]
The Court of Appeals, one judge dissenting, held that the
notices of appeal, although filed 11 days after expiration of the
time prescribed in Rule 37(a)(2) of the Federal Rules of Criminal
Procedure, [
Footnote 2] were
sufficient to confer jurisdiction of the appeals if the District
Court actually had found, under Rule 45(b), that the failure to
file the notices of appeal within 10 days after entry of the
judgment
Page 361 U. S. 222
"was the result of excusable neglect." Being unable to determine
from the record whether the District Court had so found, the Court
of Appeals, on October 2, remanded to the District Court "for
supplementation of the record" on that score, meanwhile holding in
abeyance the Government's motion to dismiss. On October 8, the
District Court
"ordered that the record reflect that the appeals were allowed
and failure to act was due to excusable neglect under Rule 45(b) of
the Federal Rules of Criminal Procedure."
On November 5, the Court of Appeals en banc, two judges
dissenting, denied the Government's petition for rehearing, 104
U.S.App.D.C. 200, 260 F.2d 718. Because of the importance of the
question to the proper and uniform administration of the Federal
Rules of Criminal Procedure, we granted certiorari. 358 U.S.
940.
The single question presented is whether the filing of a notice
of appeal in a criminal case after expiration of the time
prescribed in Rule 37(a)(2) confers jurisdiction of the appeal upon
the Court of Appeals if the District Court, proceeding under Rule
45(b), has found that the late filing of the notice of appeal was
the result of excusable neglect.
There being no dispute about the fact that the notices of appeal
were not filed within the 10-day period prescribed by Rule
37(a)(2), [
Footnote 3] the
answer to the question
Page 361 U. S. 223
presented depends upon the proper interpretation of Rule 45(b).
It provides:
"
Enlargement. When an act is required or allowed to be
done at or within a specified time, the court for cause shown may
at any time in its discretion (1) with or without motion or notice,
order the period enlarged if application therefor is made before
the expiration of the period originally prescribed or as extended
by a previous order or (2) upon motion permit the act to be done
after the expiration of the specified period if the failure to act
was the result of excusable neglect; but the court may not enlarge
the period for taking any action under Rules 33, 34 and 35, except
as otherwise provided in those rules, or the period for taking an
appeal."
In interpreting that Rule, the Court of Appeals took the view
that, although
"the District Court has no authority to grant a greater period
than ten days for taking an [appeal, it] may, however, if satisfied
that the failure to note an appeal within ten days is excusable,
permit late filing."
It thought that there was "ample justification in reason for
different treatment of pre-expiration and post-expiration
applications;" that, if a defendant "can make a timely application
for an extension of time, he can readily and with less effort file
the notice of appeal itself." But if,
"for some cause amounting legally to 'excusable neglect' the
party fails to take any action during the prescribed time, the rule
seems plainly to allow the District Court discretion to permit him
to file a late notice of appeal."
It thought that so doing would not be to "enlarge" the period
for taking an appeal, but rather would be only to "permit the act
to be done" after expiration of the specified period. This
conclusion has, at least, enough surface plausibility to require a
detailed examination of the language, judicial
Page 361 U. S. 224
interpretations, and history of Rule 45(b) and the related
Federal Rules of Criminal Procedure.
On its face, Rule 45(b) appears to be quite plain and clear. It
specifically says that "the court may not enlarge . . . the period
for taking an appeal." We think that to recognize a late notice of
appeal is actually to "enlarge" the period for taking an appeal.
Giving the words of 45(b) their plain meaning, it would seem that
the conclusion of the Court of Appeals is in direct conflict with
that Rule. No authority was cited by the Court of Appeals in
support of its conclusion, nor is any supporting authority cited by
respondents here. The Government insists, it appears, correctly,
that there is no case that supports the Court of Appeals'
conclusion. Every other decision to which we have been cited, and
that we have found, holds that the filing of a notice of appeal
within the 10-day period prescribed by Rule 37(a)(2) is mandatory
and jurisdictional. [
Footnote
4]
It is quite significant that Rule 45(b) not only prohibits the
court from enlarging the period for taking an appeal, but, by the
same language in the same sentence, also prohibits enlargement of
the period for taking any action under Rules 33, 34 and 35, except
as provided in
Page 361 U. S. 225
those Rules. That language is:
". . . but the court may not enlarge the period for taking any
action under Rules 33, 34 and 35, except as otherwise provided in
those Rules, or the period for taking an appeal."
If, as the Court of Appeals has held, the delayed filing of a
notice of appeal -- found to have resulted from "excusable neglect"
-- is sufficient to confer jurisdiction of the appeal, it would
consistently follow that a District Court may, upon a like finding,
permit delayed filing of a motion for new trial under Rule 33,
[
Footnote 5] of a motion in
arrest of judgment under Rule 34, [
Footnote 6] and the reduction of sentence under Rule 35,
[
Footnote 7] at any time --
months or even years -- after expiration of the periods
specifically prescribed in those Rules.
This is not only contrary to the language of those Rules, but
also contrary to the decisions of this Court. In
United States
v. Smith, 331 U. S. 469, it
was held that the power
Page 361 U. S. 226
of the District Court
sua sponte to grant a new trial
under Rule 33 is limited to the time fixed in that Rule. There,
quite like here, it was argued
"that, because the literal language of the Rule places the
five-day limit only on the making of the motion [for a new trial],
it does not limit the power of the court later to grant [a new
trial]. . . ."
331 U.S. at
331 U. S. 473.
This Court rejected the contention that such power "lingers on
indefinitely," and pointed out that the Rules, in abolishing the
limitation based on the Court Term, did not substitute
indefiniteness, but prescribed precise times within which the power
of the courts must be confined. 331 U.S. at
331 U. S. 474.
See also Marion v. United States, 171 F.2d 185 (C.A. 9th
Cir.);
Drown v. United States, 198 F.2d 999 (C.A. 9th
Cir.). The same rule must apply with respect to the time within
which a motion in arrest of judgment may be filed under Rule 34.
Similarly, it has been held that a District Court may not reduce a
sentence under Rule 35 after expiration of the 60-day period
prescribed by that Rule, regardless of excuse.
United States v.
Hunter, 162 F.2d 644 (C.A. 7th Cir.).
Cf. Aronti v. United
States, 350 U. S. 79.
The right of appeal in criminal cases in federal courts is of
relatively recent origin.
Carroll v. United States,
354 U. S. 394,
354 U. S. 400.
By the Act of February 24, 1933, 47 Stat. 904 (now 18 U.S.C. §
3772), Congress first gave this Court authority to promulgate rules
regulating the time and manner for taking appeals in criminal
cases. One of the principal purposes was to eliminate delays in
such appeals. H.R.Rep. No. 2047, 72d Cong., 2d Sess., to accompany
S. 4020. The first Criminal Appeals Rules promulgated under that
Act were the 13 Rules effective September 1, 1934. 292 U.S.
661-670. Rule III provided a 5-day time limit for the taking of an
appeal from a judgment of conviction. It was uniformly held that
Rule III was mandatory and jurisdictional, and appeals
Page 361 U. S. 227
not taken within that time appear always to have been dismissed
regardless of excuse. [
Footnote
8]
From this review, it would seem that there is nothing in the
language of Rule 45(b), or in the judicial interpretations of that
Rule or its predecessor, which supports the conclusion of the Court
of Appeals. We turn, then, to the history of Rule 45(b) to see
whether any support for the court's conclusion can be found in that
source.
Under the Act of June 29, 1940, 54 Stat. 688, as amended (now 18
U.S.C. § 3771), this Court was authorized to prescribe Rules of
Criminal Procedure to and including verdict, which would become
effective upon passive acceptance by Congress. Under that Act, and
the previous authority (the Act of February 24, 1933, 47 Stat. 90
now 18 U.S.C. § 3772), and with the aid of an advisory committee,
this Court promulgated the Federal Rules of Criminal Procedure.
Rules 32 through 39 were made effective by order of the Court, 327
U.S. 825, and the remaining Rules became effectively acceptance of
Congress. What are now Rules 37(a)(2) and 45(b) underwent a number
of draft changes before adoption. The first preliminary draft of
Rule 37(a)(2) changed from 5 days to 10 days the time limit for the
taking of an appeal, but of more significance is the fact that the
preliminary draft of that Rule stated, in effect, that, when a
court imposes sentence upon a defendant, represented by appointed
counsel or not represented by any counsel,
Page 361 U. S. 228
the court shall ask the defendant whether he wishes to appeal
and, if he answers in the affirmative,
"the court shall direct the clerk forthwith to prepare, file,
and serve on behalf of the defendant a notice of appeal
or
shall extend the time specified by rule for the filing of a notice
of appeal. [
Footnote
9]"
(Emphasis added.) In conformity with that draft proposal, the
preliminary draft of what is now Rule 45(b) [
Footnote 10] stated: " . . . but it may not
enlarge . . . the period for taking an appeal except as provided in
Rule 35(a)(2)." The limited provision for an extension of the time
within which to appeal that was contained in the first preliminary
draft of those Rules was eliminated by the second preliminary
draft, [
Footnote 11] and
never reappeared. This seems almost conclusively to show a
deliberate intention to eliminate any power of the courts to extend
the time for the taking of an appeal.
But there is more. The prototype for Rule 45(b) was Rule 6 of
the Federal Rules of Civil Procedure. [
Footnote 12] When the original Criminal Rules were
being prepared, the limiting clause of Rule 6(b) of the Federal
Rules of Civil Procedure stated:
". . . but it may not enlarge the period for taking any action
under Rule 59, except as stated in subdivision
Page 361 U. S. 229
(c) thereof, or the period for taking an appeal as provided by
law."
It had consistently been held that Civil Rule 6(b) was mandatory
and jurisdictional, and could not be extended, regardless of
excuse. [
Footnote 13] It
must be presumed that the Advisory Committee and the Justices of
this Court were aware of the limiting language of Civil Rule 6(b)
and of the judicial construction it had received when they prepared
and adopted the Federal Rules of Criminal Procedure. No support for
the conclusion of the Court of Appeals can be found in this history
of Rule 45(b).
Rule 45(b) says in plain words that " . . . the court may not
enlarge . . . the period for taking an appeal." The courts have
uniformly held that the taking of an appeal within the prescribed
time is mandatory and jurisdictional. The history of Rule 45(b)
shows that consideration was given to the matter of vesting a
limited discretion in the courts to grant an extension of time for
the taking of an appeal, but, upon further consideration, the idea
was deliberately abandoned. It follows that the plain words, the
judicial interpretations, and the history, of Rule 45(b) not only
fail to support, but actually oppose, the conclusion of the Court
of Appeals, and therefore its judgment cannot stand.
That powerful policy arguments may be made both for and against
greater flexibility with respect to the time for the taking of an
appeal is indeed evident. But that policy question, involving, as
it does, many weighty and conflicting considerations, must be
resolved through the rulemaking process, and not by judicial
decision.
United
Page 361 U. S. 230
States v. Isthmian S.S. Co., 359 U.
S. 314. If, by that process, the courts are ever given
power to extend the time for the filing of a notice of appeal upon
a finding of excusable neglect, it seems reasonable to think that
some definite limitation upon the time within which they might do
so would be prescribed, for otherwise, as under the decision of the
court below, many appeals might -- almost surely would -- be
indefinitely delayed. Certainly that possibility would
unnecessarily [
Footnote 14]
produce intolerable uncertainty and confusion. Whatever may be the
proper resolution of the policy question involved, it was beyond
the power of the Court of Appeals to resolve it.
Reversed.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissent, as they share
the view of Judge Bazelon, 104 U.S.App.D.C. 200, 201, 260 F.2d 718,
719, that an extension of time, granted after the 10-day period for
an appeal has passed, is not an "enlargement" of the time in the
narrow sense in which Rule 45(b) uses the word.
[
Footnote 1]
Travit Robinson's affidavit was, in essence, as follows: On
"the day of sentencing, I advised my attorney that I was going
to appeal the case. . . . I had told him that, from [what] other
inmates at the District Jail [had told me], I knew I could appeal
the judgment, but [I] did not file the necessary appeal paper,
thinking that my attorney would do it, while I now [understand] he
thought I would do it. . . . We misunderstood each other, and I now
find that I gave him the wrong impression as to what I wanted done,
and that he misunderstood what I was going to do or wanted to
do."
The affidavit of respondents' counsel substantially conformed to
Travit Robinson's affidavit, and further recited:
"I was under the impression that he was going to [file the
notice of appeal] without me, [and also] I neglected to
differentiate the rules as to appealing this type of a case [from
the Rules applying to the appeal] of a civil case."
[
Footnote 2]
All references to Rules are to the Federal Rules of Criminal
Procedure unless otherwise stated.
[
Footnote 3]
Rule 37(a)(2) of Fed.Rules Crim.Proc. provides:
"Time for Taking Appeal. An appeal by a defendant may be taken
within 10 days after entry of the judgment or order appealed from,
but if a motion for a 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. 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. . . ."
[
Footnote 4]
See, e.g., Martin v. United States, 263 F.2d 516 (C.A.
10th Cir.);
Bryant v. United States, 261 F.2d 229 (C.A.
6th Cir.);
United States v. Isabella, 251 F.2d 223 (C.A.2d
Cir.);
Banks v. United States, 240 F.2d 302 (C.A. 9th
Cir.);
Wagner v. United States, 220 F.2d 513 (C.A.4th
Cir.);
Kirksey v. United States, 94 U.S.App.D.C. 393, 219
F.2d 499;
Brant v. United States, 210 F.2d 470 (C.A. 5th
Cir.);
McIntosh v. United States, 204 F.2d 545 (C.A. 5th
Cir.)
Marion v. United States, 171 F.2d 185 (C.A. 9th
Cir.);
Swihart v. United States, 169 F.2d 808 (C.A. 10th
Cir.);
United States v. Froehlich, 166 F.2d 84 (C.A.2d
Cir.).
It is thus made to appear that the court below has itself
recognized and enforced this Rule in
Kirksey v. United States,
supra, as it did also in
Richards v. United States,
89 U.S.App.D.C. 354, n. 2, at 356, 192 F.2d 602, n. 2, at 604.
[
Footnote 5]
Rule 33 of Fed.Rules Crim.Proc., in pertinent part,
provides:
". . . A motion for a new trial based on the ground of newly
discovered evidence may be made only before or within two years
after final judgment, but if an appeal is pending the court may
grant the motion only on remand of the case. A motion for a new
trial based on any other grounds shall be made within 5 days after
verdict or finding of guilty or within such further time as the
court may fix
during the 5-day period."
(Emphasis added.)
[
Footnote 6]
Rule 34 of Fed.Rules Crim.Proc. provides:
"The court shall arrest judgment if the indictment or
information does not charge an offense or if the court was without
jurisdiction of the offense charged. The motion in arrest of
judgment shall be made within 5 days after determination of guilt
or within such further time as the court may fix
during
the 5-day period."
(Emphasis added.)
[
Footnote 7]
Rule 35 of Fed.Rules Crim.Proc. provides:
"The court may correct an illegal sentence at any time. The
court may reduce a sentence within 60 days after the sentence is
imposed, or within 60 days after receipt by the court of a mandate
issued upon affirmance of the judgment or dismissal of the appeal,
or within 60 days after receipt of an order of the Supreme Court
denying an application for a writ of certiorari."
[
Footnote 8]
See, e.g., Nix v. United States, 131 F. & 857 (C.A.
5th cir.);
United States v. Infusino, 131 F.2d 617 (C.A.
7th Cir.);
Miller v. United States, 104 F.2d 343 (C.A. 5th
Cir.);
United States v. Tousey, 101 F.2d 892 (C.A. 7th
Cir.);
O'Gwin v. United States, 90 F.2d 494 (C.A. 9th
Cir.);
Burr v. United States, 86 F.2d 502 (C.A. 7th Cir.);
Fewox v. United States, 77 F.2d 699 (C.A. 5th Cir.).
And compare United States ex rel. Coy v. United States,
316 U. S. 342, and
United States v. Hark, 320 U. S. 531,
320 U. S.
533.
[
Footnote 9]
Federal Rules of Criminal Procedure, Preliminary Draft, with
Notes and Forms, Prepared by the Advisory Committee on Rules of
Criminal Procedure, United States Government Printing Office, 1943,
Appeal Rule then No. 35(a)(2), p. 152.
[
Footnote 10]
What became Rule 45(b) was then treated as Rule 41(b).
Id. at p. 179. The note to this proposed Rule stated that
it ". . . is an adaptation for all criminal proceedings of
Fed.Rules Civ.Proc., Rule 6 (Time)."
Id. at p. 180.
[
Footnote 11]
Federal Rules of Criminal Procedure, Second Preliminary Draft,
with Notes and Forms, Prepared by the Advisory Committee on Rules
of Criminal Procedure, United States Government Printing Office,
February 1944, Appeal Rule then No. 39(a)(2), p. 135.
[
Footnote 12]
The Notes of Advisory Committee on Rules of Criminal Procedure
(Rule 45), state, "The rule is in substance the same as Rule 6 of
the Federal Rules of Civil Procedure. . . ."
[
Footnote 13]
United Drug Co. v. Helvering, 108 F.2d 637 (C.A.2d
Cir.);
Alexander v. Special School District of Booneville,
132 F.2d 355 (C.A. 8th Cir.);
Tinkoff v. West Publishing
Co., 138 F.2d 607 (C.A. 7th Cir.);
Lamb v. Shasta Oil
Co., 149 F.2d 729 (C.A. 5th Cir.);
Federal Deposit
Insurance Corporation v. Congregation Poiley Tzedeck, 159 F.2d
163 (C.A.2d Cir.).
[
Footnote 14]
The allowance of an appeal months or years after expiration of
the prescribed time seems unnecessary for the accomplishment of
substantial justice, for there are a number of collateral remedies
available to redress denial of basic rights. Examples are: the
power of a District Court under Rule 35 to correct an illegal
sentence at any time, and to reduce a sentence within 60 days after
the judgment of conviction becomes final; the power of a District
Court to entertain a collateral attack upon a judgment of
conviction and to vacate, set aside or correct the sentence under
28 U.S.C. § 2255; and proceedings by way of writ of error
coram
nobis.