Opinion
October 29, 1943.
Upon petition to vacate judgment and correct sentence.
Frank Tesciona who had been convicted of an offense filed a motion and petition to vacate judgment and correct sentence. The District Court denied the motion and refused to allow an appeal, and the defendant filed a notice of appeal.
Order in accordance with opinion.
Frank Tesciona, in pro. per.
No other appearances were entered.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
Frank Tesciona has filed what he calls a motion and petition to vacate judgment and correct sentence, addressed to this court. This court has no jurisdiction to grant such an order. The petition, however, recites that a motion was made in the lower court to correct the judgment and sentence imposed upon Tesciona by the United States District Court for the Southern District of California based upon his claim that several of the counts state but a single offense for which but a single penalty can be imposed. The District Court denied the motion on May 10, 1943 and refused to allow an appeal upon the ground that the application was without merit, citing our decision in O'Brien v. Squier, 9 Cir., 133 F.2d 123.
In addition to the petition to proceed on appeal in forma pauperis a notice of appeal was filed on July 3, 1943. The notice and petition were within the period for which an appeal could be taken. Wells v. United States, 318 U.S. 257, 63 S.Ct. 582, 87 L.Ed. ___; Nye v. United States, 313 U.S. 33, 34, 61 S.Ct. 810, 85 L.Ed. 1172.
The question is whether or not an effective appeal has been taken to this court. If so, the papers now filed by the petitioner may be treated as a brief on appeal. If not, the application must be denied. Before passing upon this question we desire to hear from the United States attorney for the Southern District of California, with leave to the petitioner to reply to any showing made by the United States attorney. Brief of the United States attorney may be filed within thirty days and the reply brief within thirty days thereafter.