271 F2d 279 Delegal v. United States

271 F.2d 279

Joe DELEGAL, Appellant,
UNITED STATES of America, Appellee.

No. 17725.

United States Court of Appeals Fifth Circuit.

Oct. 27, 1959.

Ralph L. Crawford, Savannah, Ga., for appellant.

Donald H. Fraser, Asst. U.S. Atty., Savannah, Ga., William C. Calhoun, U.S. Atty., Augusta, Ga., for appellee.

Before RIVES, Chief Judge, and TUTTLE and BROWN, Circuit Judges.


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This is an appeal from a denial by the District Court of a motion under F.R.Crim.P. 32(d), 18 U.S.C.A., to set aside a sentence of imprisonment and a prior plea of guilty to a one-count indictment charging violation of 26 U.S.C.A. 5008(b)(1) (1955). The only basis for the motion was that at the time of the entry of the plea of guilty the defendant, appellant here, was not personally present in court and the plea had been entered by his counsel without his knowledge or full consent. The District Judge heard the evidence and found that both at the time of the entry of the plea, November 10, 1958, and at the time of sentence, February 11, 1959, appellant and his counsel were present in court and the plea was knowingly made. Withdrawal of a plea of guilty is committed to the sound discretion of the District Court and no abuse of it is shown here. Williams v. United States, 5 Cir., 1951, 192 F.2d 39; Mitchell v. United States, 5 Cir., 1950,179 F.2d 305.