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United States v. Atilus

United States Court of Appeals, Fifth Circuit
May 12, 1970
425 F.2d 816 (5th Cir. 1970)

Summary

missing entire transcript

Summary of this case from U.S. v. Pace

Opinion

No. 27957 Summary Calendar.

May 12, 1970.

Peter L. Nimkoff, Miami, Fla., for appellant.

Robert W. Rust, U.S. Atty., Miami, Fla., for appellee.

Before GEWIN, GOLDBERG, and DYER, Circuit Judges.


Jerome Atilus was convicted in 1964 for illegally possessing and transporting marihuana in violation of 26 U.S.C.A. §§ 4744(a) and 4742(a). His appeal from that conviction was delayed, and as a result the propriety of this 1964 conviction is now before us for the first time on direct appeal.

Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I; Huth v. Southern Pacific Company, 5 Cir. 1969, 417 F.2d 526, Part. I.

It appears that through no fault of the defendant a transcript of the trial proceedings is no longer available. Under these circumstances this court has no choice but to reverse the conviction. The Supreme Court has made it clear beyond question that a criminal defendant has a right to a complete transcript of the trial proceedings, particularly where, as here, counsel on appeal was not counsel at the trial. Hardy v. United States, 1963, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331. Since no transcript is here available, the conviction must be reversed. Further, since Atilus has already completely served the sentence imposed as a result of the conviction, a retrial would be pointless.

The judgment of the court below is reversed and the cause is remanded for the entry of appropriate orders to expunge the records of this conviction.

Reversed and remanded.


Summaries of

United States v. Atilus

United States Court of Appeals, Fifth Circuit
May 12, 1970
425 F.2d 816 (5th Cir. 1970)

missing entire transcript

Summary of this case from U.S. v. Pace

missing entire transcript

Summary of this case from United States v. Selva

In Atilus, the court determined that where a transcript of the trial proceedings were no longer available, there was no choice but to reverse the conviction.

Summary of this case from Bordelon v. Warden Avoyelles Corr. Ctr.

missing entire transcript

Summary of this case from Freeman v. United States

In United States v. Atilus, 425 F.2d 816 (5th Cir. 1970), defense counsel had failed to perfect an appeal despite the defendant's directions, and apparently the stenographic notes were destroyed; the court ruled that because "no transcript [was] available, the conviction must be reversed."

Summary of this case from State v. McFarland

In United States v. Atilus, 425 F.2d 816 (5th Cir. 1970), defense counsel had failed to perfect an appeal despite the defendant's directions, and apparently the stenographic notes were destroyed; the court ruled that because `no transcript (was) available, the conviction must be reversed.' No other cases cited by the appellant, including the one relied on by the Fifth Circuit Court of Appeals in Atilus, stand for that proposition.

Summary of this case from White v. State
Case details for

United States v. Atilus

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Jerome ATILUS…

Court:United States Court of Appeals, Fifth Circuit

Date published: May 12, 1970

Citations

425 F.2d 816 (5th Cir. 1970)

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