Joseph Sica v. United States

Ninth Circuit

Joseph Sica v. United States

454 F.2d 281, 1971 U.S. App. LEXIS 6378

Court of Appeals for the Ninth Circuit·Decided December 29, 1971·No. 71-2528·Published·Cited by 16 cases

Opinion

PER CURIAM:

Petitioner, a federal prisoner, brought this proceeding under F.R.Cr.P. Rule 35. That rule is not applicable to his claims. However, since the sentencing court addresses itself to the merits of Sica’s claim, and since both sides have fully briefed the issue, we treat this as a motion under 28 U.S.C. § 2255. The order denying relief is affirmed.

When appellant accepted his release on bail pending appeal, he in effect *282 agreed to staying his sentence. F.R.Cr. P. Rule 38; 18 U.S.C. § 3568. There is no reason for treating time spent on bail as jail time. See, Marchese v. McEachen, 451 F.2d 555 (9th Cir. 1971).

The unreported decision of this court on which appellant relies is not in point. Here in Sica’s case the conditions of release were imposed by the Circuit Justice, not by the marshal.

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PER CURIAM:

Petitioner, a federal prisoner, brought this proceeding under F.R.Cr.P. Rule 35. That rule is not applicable to his claims. However, since the sentencing court addresses itself to the merits of Sica’s claim, and since both sides have fully briefed the issue, we treat this as a motion under 28 U.S.C. § 2255. The order denying relief is affirmed.

When appellant accepted his release on bail pending appeal, he in effect *282 agreed to staying his sentence. F.R.Cr. P. Rule 38; 18 U.S.C. § 3568. There is no reason for treating time spent on bail as jail time. See, Marchese v. McEachen, 451 F.2d 555 (9th Cir. 1971).

The unreported decision of this court on which appellant relies is not in point. Here in Sica’s case the conditions of release were imposed by the Circuit Justice, not by the marshal.

Joseph Sica v. United States, 454 F.2d 281, 1971 U.S. App. LEXIS 6378 (9th Cir. 1971).

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Opinion

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