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Hoskins v. United States

decided: June 12, 1972.

CLAUDE HOSKINS, JR., APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE



Van Dusen and Hunter, Circuit Judges, and Layton, District Judge.

Author: Layton

Opinion OF THE COURT

LAYTON, District Judge.

On January 15, 1970, defendant was tried by Court and found guilty on a two count indictment charging him with knowingly and unlawfully transporting a woman in interstate commerce for the purpose of prostitution and other immoral purposes. On March 12th, he was sentenced to 3 years confinement on each count, the sentences to run concurrently. At arraignment, trial and imposition of sentence, he was represented by privately retained counsel.

On April 1st, the trial judge directed that a letter of the defendant dated March 28th, which had been received March 30th, be treated as an application for an extension of time within which to file a notice of appeal. The Court denied this application for failure to show excusable neglect.

Later, on June 10, 1970, the Court ordered that another letter of defendant dated June 6th be treated as a petition for reconsideration or modification of his sentence. This petition was also denied.

On June 30, 1970, defendant filed a "Motion Pursuant to Title 28 U.S.C. ยง 2255" which the trial Court denied in an opinion dated November 6, 1970.

This appeal followed.

The defendant specifies three grounds for appeal: (1) that the trial court abused its discretion in denying him a continuance in order to secure witnesses in his behalf; (2) that he was deprived of the effective assistance of counsel and (3) that at the time of imposition of sentence, the trial Court failed to comply with the provisions of Rule 32(a) (2) F.R.Cr.P.

As to the first two assignments of error, we have carefully studied the record and arguments of counsel and are of the opinion that they are without substance.

The third ground, however, requires a somewhat extensive answer.

The Federal Rules provide that:

"After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. . . . ."*fn1

The record shows clearly that at his sentencing on March 12, the defendant was not informed of his rights to appeal. However, the record also clearly shows that the defendant had been clearly advised of his ...


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