LEMKE
v.
UNITED STATES
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A defendant filed a notice of appeal one day before the judgment was formally entered, violating the Federal Rules of Criminal Procedure requirement that appeals be filed within ten days after entry of judgment. The Supreme Court reversed the dismissal of the appeal, holding that the procedural defect did not affect substantial rights and therefore should be disregarded under Rule 52(a).
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Per Curiam.
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 júdgment 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.
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State v. Sexton, 283 So. 2d 578 (Fla. 2d DCA 1973)…affecting 'appeal time. If the question were novel, I would hold this appeal, taken before entry of a written order, to have been taken as of the date the written order was entered. The Supreme Court of the United States so held in Lemke v. U. S., 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3, reasoning that a rule providing that “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Rule 3.2(c), F.A.R., says in part, “Deficiencies in form or substance in the n…
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Coppedge v. United States, 369 U.S. 438 (U.S. 1962)…States v. Robinson, 361 U. S. 220, a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal, has been used to preserve the jurisdiction of the Courts of Appeals. See, e. g., Lemke v. United States, 346 U. S. 325 (notice of appeal filed prior to judgment); O’Neal v. United States, 272 F. 2d 412 (C. A. 5th Cir.) (appeal bond filed in District Court); Tillman v. United States, 268 F. 2d 422 (C. A. 5th Cir.) (application for leave to appeal in forma pauperis fi…
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Leonhard v. The United States, 633 F.2d 599 (2d Cir. 1980)…urisdiction of the appeal, if at all, at the time the notice is filed. See, e. g., Williams v. Bernhardt Bros. Tugboat Serv., Inc., supra. Others have deemed premature appeals to be validated by subsequent events. See, e. g., Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953); Richerson v. Jones, 551 F. 2d 918, 922 (3d Cir. 1977); Tilden Financial Corp. v. Palo Tire Serv. Inc., 596 F. 2d 604, 606-07 (3d Cir. 1979); Plummer v. United States, 580 F. 2d 72 (3d Cir. 1978); Morris v. Uhl & Lopez…
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