Opinion
Criminal No. 01-320, (C.A. No. 04-1229).
October 1, 2004
MEMORANDUM
The Court of Appeals has entered the following Order, dated September 17, 2004:
"The foregoing appeal is hereby remanded to the District Court for a determination of the proper filing date for Appellant's notice of appeal. It is noted that the pro se document that was ultimately treated as Appellant's notice of appeal was first filed in the District Court on November 25, 2003. This Court will retain jurisdiction pending the District Court's ruling."
In conformity with this mandate, I set forth the following facts:
Defendant/Appellant was sentenced on October 13, 2003. The written judgment was docketed on November 14, 2003. On Tuesday, November 25, 2003, the Clerk's Office received, and docketed, defendant's "Notice of Motion for Assignment of Counsel and Granting Leave to Appeal In Forma Pauperis."
I construed that document as equivalent to a notice of appeal. I did not believe I had jurisdiction to decide whether such a notice of appeal was timely. It did appear, however, that the defendant/appellant was proceeding pro se, and was incarcerated, and that the "prison mailbox rule" rendered his notice timely.
When the motion was brought to my attention, on December 22, 2003, I entered an order transferring the defendant's motion for appointment of counsel to the Court of Appeals, on the theory that I did not have jurisdiction to grant such relief. On the same date, from an abundance of caution, I ruled on defendant's application for leave to proceed in forma pauperis (dismissing it without prejudice, as not accompanied by the required affidavit; the motion was eventually granted, on January 22, 2004).
A formal notice of appeal was not filed until January 27, 2004. To the extent that the matter is within this court's jurisdiction, I am of the view that the November 25, 2003 motion constituted a Notice of Appeal, and was timely.
The Clerk is directed to send this memorandum to the Court of Appeals, pursuant to that Court's Order.