454 F2d 281 Sica v. United States

454 F.2d 281

Joseph SICA, Defendant-Appellant,
v.
UNITED STATES of America, Plaintiff-Appellee.

No. 71-2528.

United States Court of Appeals,
Ninth Circuit.

Dec. 29, 1971.

Jake Erlich, San Francisco, Cal., for defendant-appellant.

Robert L. Meyer, U. S. Atty., David R. Nissen, Asst. U. S. Atty. and Chief, Crim. Div., Irving Prager, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before CHAMBERS, WRIGHT and KILKENNY, Circuit Judges.

PER CURIAM:

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1

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. Sec. 2255. The order denying relief is affirmed.

2

When appellant accepted his release on bail pending appeal, he in effect agreed to staying his sentence. F.R.Cr.P. Rule 38; 18 U.S.C. Sec. 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).

3

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.