Godin v. United States

Fifth Circuit

Godin v. United States

495 F.2d 560, 1974 U.S. App. LEXIS 8198

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 10, 1974

DocketNo. 74-1531

StatusPublished

Cited by5 cases

This text of 495 F.2d 560 (Godin v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Godin v. United States, 495 F.2d 560, 1974 U.S. App. LEXIS 8198 (5th Cir. 1974).

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Opinion

PER CURIAM:

Juan M. Godin appeals from a district court order denying his 28 U.S.C. §-2255 motion to vacate a sentence imposed as a result of his conviction for selling heroin not pursuant to a written order form or from an original package, in violation of 26 U.S.C. §§ 4704(a) and 4705(a). In his 2255 motion he asserts as grounds for relief that the trial court failed to apprise him of his right to appeal as required by Federal Rule of Criminal Procedure 32(a) (2). We affirm.

The record reveals that on April 13, 1970, the jury tendered its verdict of guilty as charged and the trial court entered its judgment of conviction. Subsequent to imposing sentence, but nevertheless on the same day, the district court sent a letter to Godin by registered mail, informing him of his right to appeal. Appearing at the bottom of this letter are the words: “I do not wish to appeal. Signed Juan M. Godin.” Correspondence from his trial attorney, dated April 17, 1970, confirms the fact that Godin did not desire to appeal. Thus, the record supports the conclusion that Godin was informed by the court of his right to appeal and elected not to exercise it.

Nevertheless, Godin contends that the failure of the trial judge to apprise him of his right to appeal in open court contravenes F.R.Crim.Pro. 32(a)(2). This rule stipulates as follows:

“(2) Notification of Right to Appeal. 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. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.”

Clearly, this rule does not by its own terms mandate that which Godin apprehends. To our knowledge, no court has been of such a view. Thus, although it may be preferable to advise a defendant of his right to appeal in open court, a court is not unequivocally forbidden to do so by the means chosen by the trial court in this case. Godin was apprised of his right to appeal in substantial compliance with the rule.

The judgment is affirmed.

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PER CURIAM:

Juan M. Godin appeals from a district court order denying his 28 U.S.C. §-2255 motion to vacate a sentence imposed as a result of his conviction for selling heroin not pursuant to a written order form or from an original package, in violation of 26 U.S.C. §§ 4704(a) and 4705(a). In his 2255 motion he asserts as grounds for relief that the trial court failed to apprise him of his right to appeal as required by Federal Rule of Criminal Procedure 32(a) (2). We affirm.

The record reveals that on April 13, 1970, the jury tendered its verdict of guilty as charged and the trial court entered its judgment of conviction. Subsequent to imposing sentence, but nevertheless on the same day, the district court sent a letter to Godin by registered mail, informing him of his right to appeal. Appearing at the bottom of this letter are the words: “I do not wish to appeal. Signed Juan M. Godin.” Correspondence from his trial attorney, dated April 17, 1970, confirms the fact that Godin did not desire to appeal. Thus, the record supports the conclusion that Godin was informed by the court of his right to appeal and elected not to exercise it.

Nevertheless, Godin contends that the failure of the trial judge to apprise him of his right to appeal in open court contravenes F.R.Crim.Pro. 32(a)(2). This rule stipulates as follows:

“(2) Notification of Right to Appeal. 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. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.”

Clearly, this rule does not by its own terms mandate that which Godin apprehends. To our knowledge, no court has been of such a view. Thus, although it may be preferable to advise a defendant of his right to appeal in open court, a court is not unequivocally forbidden to do so by the means chosen by the trial court in this case. Godin was apprised of his right to appeal in substantial compliance with the rule.

The judgment is affirmed.

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495 F.2d 560, 1974 U.S. App. LEXIS 8198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/godin-v-united-states-ca5-1974.

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