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Lemke v. United States

U.S.
Oct 12, 1953
346 U.S. 325 (1953)

Summary

treating as an "irregularity" the premature filing of a notice of appeal in violation of former Fed.R.Crim.P. 37 (current Fed.R.App.P. 4(b))

Summary of this case from U.S. v. Rivera

Opinion

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 109.

Decided October 12, 1953.

Petitioner was convicted of a crime and sentenced to imprisonment. He filed his notice of appeal the next day; but judgment was not entered until several days later. Held: Though Rule 37(a)(2) of the Federal Rules of Criminal Procedure provides that such appeals may be taken "within 10 days after entry of the judgment," the irregularity in noting the appeal prematurely should have been disregarded under Rule 52(a), as it did not "affect substantial rights," and the appeal should not have been dismissed. Pp. 325-326.

203 F.2d 406, reversed.

Bailey E. Bell for petitioner.

Acting Solicitor General Davis, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States.


This case is here on a petition for certiorari to the Court of Appeals for the Ninth Circuit, which dismissed an appeal as premature. Rule 37(a)(2) of the Federal Rules of Criminal Procedure provides that "An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from . . . ."

On March 10, 1952, petitioner was sentenced to six months in jail after a jury verdict finding him guilty of violating § 65-5-81 of the Alaska Compiled Laws Ann., 1949. On March 11, 1952, petitioner filed his notice of appeal. The judgment, however, was not entered until March 14, 1952. Since no notice of appeal was filed after that time, the appeal was dismissed as premature, Judge Pope dissenting.

The notice of appeal filed on March 11 was, however, still on file on March 14 and gave full notice after that date, as well as before, of the sentence and judgment which petitioner challenged. We think the irregularity is governed by Rule 52(a) which reads "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."

Accordingly we grant the petition for certiorari, reverse the judgment below, and remand the case for further proceedings consistent with this opinion.

THE CHIEF JUSTICE took no part in the consideration or decision of this case.


Summaries of

Lemke v. United States

U.S.
Oct 12, 1953
346 U.S. 325 (1953)

treating as an "irregularity" the premature filing of a notice of appeal in violation of former Fed.R.Crim.P. 37 (current Fed.R.App.P. 4(b))

Summary of this case from U.S. v. Rivera

In Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953) (per curiam), the Supreme Court held that a notice of appeal filed after sentencing but before entry of the judgment conferred jurisdiction upon the court of appeals.

Summary of this case from U.S. v. Green

In Lemke, the Supreme Court interpreted Federal Rule of Criminal Procedure 37(a)(2), the forerunner of Federal Rule of Appellate Procedure 4(b).

Summary of this case from U.S. v. Hashagen

In Lemke, the sentence upon a guilty verdict was imposed on March 10. The notice of appeal from the sentence and conviction was filed on March 11. The judgment was not entered of record until March 14. The court held the notice of appeal gave notice of intention to appeal from the sentence and final conviction.

Summary of this case from Stewart v. Bishop

In Lemke v. United States of America, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953), the Supreme Court held that the premature filing of a notice of appeal in a criminal case did not destroy the appeal, and stated that any error, defect, irregularity, or variance which does not effect substantial rights, shall be disregarded.

Summary of this case from Texas Employment Commission v. Hartzheim

In Lemke v. United States (1953), 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3, a convicted defendant was sentenced on March 10. He filed notice of appeal on March 11.

Summary of this case from Haverstick v. Banat
Case details for

Lemke v. United States

Case Details

Full title:LEMKE v . UNITED STATES

Court:U.S.

Date published: Oct 12, 1953

Citations

346 U.S. 325 (1953)
74 S. Ct. 1
14 Alaska 423

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