Opinion
March 31, 1944.
Frank Tesciona was convicted of mail robbery and subsequently moved the District Court to vacate and correct his sentence, which motion was denied, and still later he filed in the District Court a notice of appeal and motion for leave to proceed on appeal in forma pauperis, which motion was also denied, and subsequently the defendant applied to the Circuit Court of Appeals to vacate judgment and correct sentence, which the court denied, but stated that if an effective appeal had been taken the court would consider the so-called petition as a brief on appeal.
Application for leave to proceed in forma pauperis denied.
Frank Tesciona, in pro. per.
Charles H. Carr, U.S. Atty., James M. Carter and Betty Marshall Graydon, Asst. U.S. Attys., all of Los Angeles, Cal., for appellee.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
On February 20, 1926, petitioner was sentenced in the District Court of the United States for the Southern District of California, Southern Division, for mail robbery. On May 19, 1942, he moved that court to vacate and correct his sentence, which motion was denied on May 10, 1943. On July 3, 1943, petitioner filed in the same court a notice of appeal and motion for leave to proceed on appeal in forma pauperis. The motion was denied July 9, 1943, without any certification by the trial court of its opinion as to the good faith of the appeal.
On August 20, 1943, petitioner presented to this court a document entitled "Petition to vacate judgment and correct sentence", together with his motion for leave to proceed thereon in forma pauperis. On October 29, 1943, this court filed its opinion herein stating that it was without jurisdiction to entertain such an original application to vacate judgment, but that if an effective appeal had been taken it would consider the so-called petition as a brief on appeal. 138 F.2d 568. Briefs were requested from the United States attorney and petitioner on the question of the effectiveness of petitioner's attempted appeal. We now proceed to a consideration of that matter.
Appeal from an order of the sort here involved is not within the scope of Rule 3 of the Rules in Criminal Cases, 18 U.S.C.A. following section 688; hence, appeal is taken not by filing notice as provided by that rule but by petition to the court, within three months after entry of the order, for allowance of the appeal as provided by 28 U.S.C.A. § 230. United States ex rel. Coy v. United States, 316 U.S. 342, 345, 62 S.Ct. 1137, 86 L.Ed. 1517; Wells v. United States, 318 U.S. 257, 260, 63 S. Ct. 582, 87 L.Ed. 746. Petitioner's application to the lower court for leave to appeal in forma pauperis constituted a sufficient petition for leave to appeal (Steffler v. United States, 319 U.S. 38, 63 S.Ct. 948, 87 L.Ed. 1197), and having been filed and presented to the court within three months of entry of the order it was timely and sufficed to preserve petitioner's right of appeal. Cardona v. Quinones, 240 U.S. 83, 36 S.Ct. 346, 60 L.Ed. 538. However, the application having been denied by the trial court, petitioner has not perfected his appeal. Matton Steamboat Co., Inc., v. Murphy, 319 U.S. 412, 63 S.Ct. 1126, 87 L.Ed. 1483.
It follows that petitioner's application, if viewed as an original application to this court, is beyond our jurisdiction to entertain, and if viewed as a brief on appeal concerns an appeal not properly brought before us. In either event leave to proceed upon it in forma pauperis must be denied.
Application for leave to proceed in forma pauperis is denied.