UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 25, 1985
UNITED STATES OF AMERICA
ROBERT B. GRAHAM, SR., APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 83-00140-01)
Before: SEITZ, WEIS, and ROSENN, Circuit Judges
MEMORANDUM OPINION OF THE COURT
WEIS, Circuit Judge.
While the defendant's conviction was on appeal to this court, the district court revoked his probation and entered an order to that effect on December 21, 1984. Two days later, the defendant's present counsel, Nino Tinari, filed a "Petition For Bail Pending Appeal and/or Stay of Execution of Sentence." In his petition, Mr. Tinari noted that probation had been revoked, that appeals were pending, and that "after a preliminary review of the briefs and memoranda of transcripts filed on appeal, counsel herein believes that the said appeal is meritorious." The petition also recited that defendant had close community ties, he was "not a threat to flee," and if defendant were to begin his imprisonment on January 2, 1985, it would present a severe hardship. The court was asked to grant "bail pending appeal in a reasonable amount, or in the alternative, staying execution of sentence."*fn1
The district court denied the petition on December 26, 1984. Mr. Tinari took no further action until March 20, 1985, when he filed in the district court to document styled "Motion to Have Petition for Bond Pending Appeal and/or Stay of Execution Declared to be Requisite Notice of Appeal." In the motion, Mr. Tinari alleged that defendant intended to appeal the "revocation of his bail" and he "manifested this intent through the action taken by his attorney almost immediately after being retained," namely, the filing of the Petition for Bail Pending Appeal. He asked the Petition For Bail be treated as a Notice of Appeal. On April 19, 1985, the trial judge dismissed the motion stating it should have been presented to the court of appeals, not the district court.
Federal Rules of Appellate Procedure 3(c) provides that "An appeal shall not be dismissed for informality of form or title of the notice of appeal." The advisory committee note states that "it is important that the right of appeal not be lost be mistakes of mere form. In a number of decided cases it has been held that so long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with."
In United States v. Whitaker, 722 F.2d 1533 (11th Cir. 1984), the Court of Appeals for the Eleventh Circuit in an exercise of discretion treated a motion for release pending appeal as the requisite jurisdictional notice under F.R.A.P. 4(b). Cf. Collier v. United States, 384 U.S. 59, 16 L. Ed. 2d 353, 86 S. Ct. 1253 (1966).
The government argues that the Petition for Bail Pending Appeal was intended to apply only to the direct appeal from the judgment of conviction and sentence, not as a separate appeal from the order revoking probation. We note that the defendant's petition is ambiguous and that the government is not without support. However, in the exercise of our discretion to protect the defendant's right of appeal, we will construe the petition as adequate to serve as a notice of appeal.
The clerk shall fix a briefing schedule so that the court may consider this case on the merits. The clerk shall also prepare a Rule to Show Cause, directing Mr. Tinari to explain why sanctions should not be imposed for his failure to timely file a notice of appeal in proper form, and thus avoiding the unnecessary expense to the United States caused by his negligence.