316 F2d 185 Urry v. United States

316 F.2d 185

Darwin J. URRY, Appellant,
UNITED STATES of America, Appellee.

No. 7272.

United States Court of Appeals Tenth Circuit.

April 12, 1963.

Arnold C. Wegher, Denver, Colo., for appellant.

Walker E. Anderson, Asst. U. S. Atty. (William T. Thurman, U. S. Atty., on the brief), for appellee.

Before PICKETT and SETH, Circuit Judges, and CHRISTENSEN, District Judge.


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The appellant was charged with the interstate transportation of a stolen automobile in violation of Title 18 U.S.C. § 2312. A guilty plea was entered and he was sentenced. More than sixty days after sentencing, appellant filed a motion for modification of sentence. The trial court denied appellant's motion on the ground that it was untimely.


Appellant urges that authority to modify the sentence following the expiration of sixty days is found in Rule 45(c) and in United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309, and that such authorities prevail over Rule 35 of the Rules of Criminal Procedure. Rule 45(c) of the Federal Rules of Criminal Procedure only provides that the expiration of a term of court does not affect the period of time for the doing of an act, and the case above cited does not relate to the question at hand. Rule 35 of the Federal Rules of Criminal Procedure provides for the sixty-day period from the time sentence is imposed during which it may be modified. This time may not be enlarged. Rule 45(b), Federal Rules of Criminal Procedure; United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259; United States ex rel. Quinn v. Hunter, 162 F.2d 644 (7th Cir.); United States v. Chicago Professional Schools, Inc., 302 F.2d 549 (7th Cir.).