234 F2d 59 Cole v. United States

234 F.2d 59

98 U.S.App.D.C. 238

Donald W. COLE, Appellant,

v.

UNITED STATES of America, Appellee.

No. 12970.

United States Court of Appeals District of Columbia Circuit.

Argued April 25, 1956.

Decided May 10, 1956.

Mr. Walton H. Hamilton, Washington, D.C. (appointed by this Court) for appellant.

Mr. Lewis Carroll, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., and John C. Conliff, Jr., Asst. U.S. Atty., were on the brief, for appellee. Mr. Leo A. Rover, U.S. Atty., at the time record was filed, also entered an appearance for appellee.

Before EDGERTON, Chief Judge, and FAHY and BASTIAN, Circuit Judges.

PER CURIAM.

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1

The appeal is from two orders of the District Court, one entered September 12, 1955, the other January 17, 1955. Since the notice of appeal was not filed until October 3, 1955, it was too late to give us jurisdiction to review the order of January 17, 1955.

2

The September 12th order denied a motion for leave to withdraw a plea of guilty to second degree murder which had been entered April 28, 1952, in substitution for a plea of not guilty to first degree murder previously entered. The motion denied was filed under Rule 32(d), Fed.Rules Crim.Proc., 18 U.S.C.1 We are not able to hold on the record before us that the District Court abused its discretion in 1952 in permitting the change of plea, or, under the 'manifest injustice' standard of Rule 32(d), in denying the motion now under review to withdraw the plea.

3

Affirmed.

1 Although the motion also asked that the plea of guilty be set aside and the judgment vacated, we do not consider it as a motion under 62 Stat. 967 (1948), as amended, 28 U.S.C. § 2255 (1952).