Staley, Seitz and Gibbons, Circuit Judges.
Defendant, James Anderson Deans, was convicted on June 15, 1966 of knowingly refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a). Despite the fact that he was tried more than four years ago, has now been inducted into the Army, and has brought collateral proceedings in two United States district courts, defendant now comes before this court seeking to appeal his conviction.
Defendant's history of encounters with the Selective Service System and, more recently, the United States Army is long and varied. In January 1961, at age eighteen, defendant registered with his local draft board in Newark, New Jersey. Two years later, he was sent a Selective Service "Classification Questionnaire," which he completed and returned to the board after signing a printed statement that he was "conscientiously opposed to participation in war in any form." At the same time, he also requested a copy of the necessary form for claiming conscientious objector status (SSS Form No. 150). Defendant filed Form 150 with his local board on January 30, 1963, setting forth the nature of his beliefs but omitting certain other required information, such as the names of references who could attest to his sincerity.
Defendant's local board denied his conscientious objector claim on April 9, 1963, and notified him that he had been classified I-A (available for military service). Defendant neither requested a personal appearance nor appealed his classification to the state appeal board.
Defendant reported for a preinduction physical examination on March 20, 1964 and was found qualified under existing standards of acceptability. On its own motion, defendant's local board then reopened his classification, reviewed his entire file -- including his conscientious objector claim -- and voted to retain him in Class I-A. Although defendant was notified of the board's action on April 15, 1964, and thereby became entitled once again to request a personal appearance and/or seek review by the state appeal board, he exercised neither of these rights.
On February 15, 1965, defendant was ordered to report for induction on March 1, 1965. He appeared at the induction center on the stated date but refused either to submit to a new medical examination or to induction itself, explaining to the processing officer that "he belonged to the 'World of Islam' and military service was contrary to his religious beliefs."
Defendant was indicted for knowingly refusing to submit to induction into the Armed Forces, was convicted by a jury, and, on September 23, 1966, was sentenced to a term of three years imprisonment. He took no appeal but, rather, began petitioning the Attorney General for parole into the custody of the Armed Forces, pursuant to Exec.Order No. 11,325, 32 C.F.R. § 1643 (1967). His efforts finally met with success and, on July 16, 1968, he was inducted into the United States Army.*fn1
On August 13, 1968, while stationed at Fort Jackson, South Carolina, defendant filed a petition for a writ of habeas corpus in the United States District Court for the District of South Carolina. The major portion of this petition was construed as an attack upon the validity of defendant's original sentence and was transferred to the District of New Jersey for consideration as a motion under 28 U.S.C. § 2255. Although the district judge in the transferee court dismissed eleven of defendant's claims in an Opinion and Order dated May 1, 1969, he failed to dispose of Deans' additional allegation that he had not been advised of his right to appeal at the time of sentencing in violation of Fed.R.Crim.P. 32(a) (2).*fn2 We can only surmise that the district judge treated this claim as a request for leave to appeal, since he entered an order on April 14, 1969 permitting defendant to appeal nunc pro tunc as of September 23, 1966, the date of sentencing. After receiving defendant's notice of appeal, this court, by order of the Chief Judge, permitted an appeal to be docketed as of August 5, 1969.
Because of the unusual posture of this case, we must first determine whether we have jurisdiction to hear defendant's appeal. At the time Deans was sentenced, Fed.R.Crim.P. 37(a) (2) required a defendant in a criminal case to note his appeal within ten days after the entry of judgment against him; even upon a showing of "excusable neglect," the district court was permitted to extend this time limit only for an additional thirty days. Compliance with these provisions has been described as both "mandatory and jurisdictional." United States v. Robinson, 361 U.S. 220, 224, 80 S. Ct. 282, 4 L. Ed. 2d 259 (1960); see Fed.R.Crim.P. 45(b), 383 U.S. 1112 (1966).*fn2a Nevertheless, when a defendant does not first become aware of his right to appeal until more than forty days after his sentencing, a strict application of the Federal Rules so as to effectively deny the defendant's right to appeal would create a harsh result indeed. Accordingly, we adopt the view that the mandatory time limit for perfecting an appeal does not begin to run until the defendant is actually notified of his rights. Miller v. United States, 356 F.2d 63 (5th Cir.), cert. denied, 384 U.S. 912, 86 S. Ct. 1357, 16 L. Ed. 2d 365 (1966); Hannigan v. United States, 341 F.2d 587 (10th Cir.1965).
Federal Rule of Criminal Procedure 32(a) (2) requires the district court at the time of sentencing to advise each defendant of his right to appeal -- including the right to proceed in forma pauperis -- and of his right to have the clerk of the district court file a notice of appeal in his behalf. We have reviewed the transcript of Deans' sentencing and find that he was not so advised.*fn3 We are not unaware that some Circuits as well as the Supreme Court in Rodriquez v. United States, 395 U.S. 327, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1969), have held that the proper remedy under such circumstances is to remand to the district court for a resentencing, which would then mark the beginning of the time limit for noting an appeal. E.g., Nance v. United States, 422 F.2d 590 (7th Cir.1970). With the exception of United States v. Smith, 387 F.2d 268 (6th Cir.1967), however, these cases have come before the courts as challenges to the validity of the sentence itself under 28 U.S.C. § 2255. Here, on the other hand, the court below appears already to have granted § 2255 relief by entering its order of April 14, 1969, and the defendant's points of appeal have come before us fully briefed. For us to remand solely to require the formality of a resentencing would be a useless and time-consuming gesture. We therefore hold that we are not barred from exercising jurisdiction over this case for want of a timely appeal. See Boruff v. United States, 310 F.2d 918 (5th Cir.1962).
In addition, despite the fact that defendant has now been paroled into the United States Army, we do not lack jurisdiction because of mootness. See Sibron v. New York, 392 ...