391 F.2d 276 - Fowler v. United States — 391 F.2d 276

How this case has been cited

Cited by 24 later decisions — most recently January 1984

11 federal appellate · 8 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Robert W. Fowler, pro se.

¶2Donald Bierman, Asst. U. S. Atty., Miami, Fla., for appellee.

¶3Before WISDOM and BELL, Circuit Judges.*

¶5PER CURIAM:

¶6Proceeding under 28 U.S.C.A. § 2255, appellant attacks the sentence entered on his plea of guilty to an indictment charging him with the unlawful purchase and sale of heroin. He had been previously convicted of the same offense after a jury trial. At his instance, we reversed and remanded for a new trial. Fowler v. United States, 5 Cir., 1962, 310 F.2d 66.

¶7The original indictment was dismissed upon motion of the government in 1965 and a new indictment, charging appellant with the same offenses, was returned. He thereupon entered his plea of guilty to the charges.

¶8The basis of the attack on the sentence which he is now serving is two-fold. He alleges that the second indictment and trial was approximately two and one half years after the reversal of his original conviction and that this subjected him to double jeopardy and denied him a speedy trial.

¶9A subsequent prosecution after defendant has sought and obtained a new trial does not constitute double jeopardy. See Bryan v. United States, 1950, 338 *277U.S. 552, 560, 70 S.Ct. 317, 94 L.Ed. 335; United States v. Ball, 1896, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. United States v. Ewell, 1966, 383 U.S. 116, 121-122, 124, 86 S.Ct. 773, 15 L.Ed.2d 627. See also Gilmore v. United States, 5 Cir., 1959, 264 F.2d 44, cert. den., 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982.

¶10 Appellant’s plea of guilty forecloses his allegation that he was denied a speedy trial. His voluntary plea constituted a waiver of all non-jurisdictional defects. Busby v. Holman, 5 Cir., 1966, 356 F.2d 75. The issue of the right to a speedy trial is non-jurisdictional in nature. United States v. Doyle, 2 Cir., 1965, 348 F.2d 715.

¶11The District Court did not err in denying relief to appellant.

¶12Affirmed.