December 30, 1963
JAMES FRANCIS JENKINS, APPELLANT,
UNITED STATES OF AMERICA, APPELLEE.
Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.
FORMAN, Circuit Judge.
On March 12, 1959, in the United States District Court for the Eastern District of Pennsylvania, James F. Jenkins and Randall C. Nuss*fn1 were indicted for, among other things, knowingly and unlawfully taking and carrying away with intent to steal $17,870 from the Girard Trust Corn Exchange Bank, Lawrence Park Office, Broomall, Pennsylvania. The Federal Deposit Insurance Corporation insured the bank.
On January 4, 1960, Jenkins appeared with his counsel, Garfield W. Levy, Esq., before the District Court.*fn2 Directly after the selection of a jury, he changed his plea to the indictment from "not guilty" to "guilty". The Court then sentenced him under 18 U.S.C. § 4208(a) to a term of 12 years with parole eligibility at the end of four years.
On February 26, 1962, Jenkins filed a petition under 28 U.S.C. § 2255 to vacate or correct sentence. The essence of his argument was that he had been illegally "induced by the court to change his plea from 'not guilty' to 'guilty'."
On September 13, 1962, after a full hearing, the District Court denied the petition, albeit it ordered that the sentence provide for a term of nine years, instead of twelve, and that eligibility for parole start at the end of three years, instead of four. Jenkins had filed an appeal from the denial of his petition.
The only findings and conclusions that the District Court made were those uttered at the close of the hearing, when it said:
"I find as a fact that I agree with Mr. Levy.
"I find as a fact that no misrepresentations were made.
"I deny the petition."
Examination of the record discloses, additional
Examination of the record discloses, additionally, that there is neither an opinion nor a memorandum of decision containing findings of fact and conclusions of law.
The record lacks any written order for final judgment.*fn3 Any entry of final judgment on the docket of the District Court Clerk is also absent.
Jenkins's motion to vacate sentence is not a proceeding in the original criminal prosecution but an independent criminal prosecution but an independent civil suit.*fn4 And when the present motion was before the District Court in 1962, neither statute nor rule demanded that final judgment be set forth on a separate document,*fn5 as the 1963 amendment to Rule 58 of the Federal Rules of Civil Procedure currently requires.*fn6 It was then and is now indisputable, though, that the record in order to be appealable must contain some directive reflecting the final judgment.*fn7
No form of words and no peculiar formal act are necessary to evince rendition of a final judgment.*fn8 The test is whether the language of the directive embodies the essential elements of a final decision and clearly evidences the judge's intention that it shall be his final act in the case.*fn9
Let us assume that the District Court Judge made a final order when, as appears in the transcript,*fn10 he stated: "I deny the petition." The clerk's entry on his docket relating to the transcript, however, merely states: "Oct. 1 Transcript 9/13/62 filed."*fn11 This notation simply discloses that a transcription of the hearing had been filed.
There is no notation of judgment, which does, in fact, constitute the entry of final judgment. In a motion attacking sentence under Title 28 U.S.C. § 2255, "[an] appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment * * *." Only by a strict compliance with the statute may litigants avoid untimely and premature appeals. Accordingly, since scrutiny of the record reveals no order entered on the motion as from a final judgment, we are without jurisdiction.
That argument on this point is absent from the parties' appellate briefs is inconsequential.*fn12 As held by the Supreme Court: "However, the mere consent of the parties to the Court's consideration and decision of the case cannot, by itself, confer jurisdiction on the Court."*fn13
Of course any final judgment herein that the District Court now enters should be drafted in accordance with Rule 58 of the Federal Rules of Civil Procedure as amended January 21, 1963, effective July 1, 1963.
As this case must be remanded to the District Court, by reason of our lack of jurisdiction, two points should be borne in mind.
First: It should be observed that the United States Code obligates the district court on hearing a motion to attack sentence to determine not only the issues but to make findings of fact and conclusions of law, unless the record conclusively shows that petitioner is entitled to no relief.*fn14 In addition to helping the appellate court define the issues for review, this is an indispensable factor in deciding what the trial court had adjudicated on such a motion. In this case the District Court should give consideration whether its sketchy oral findings and conclusions adequately fulfilled this mandate.
Second: It should be observed that the Government's brief suggests that "while the Court had authority [in its September 13, 1962 ruling] to set aside Appellant's sentence of January 4, 1960, and resentence Appellant, the Court had no authority or power to amend Appellant's sentence." Manifestly in 1962, when the District Court amended Jenkins's 1960 sentence, the time period, providing for the reduction of a sentence through the exercise of discretion, had passed.*fn15 And the statute pertaining to remedies on motions attacking sentence*fn16 does not provide for an amendment of sentence. Rather, it restates and simplifies the ancient writ of error coram nobis so that an erroneous sentence*fn17 may be vacated or set aside without resort to habeas corpus.*fn18
The instant appeal will be dismissed and the case remanded to the District Court for action consistent with this opinion.