Del Marmol v. United States, 203 F.2d 200 (9th Cir. 1953)

This is an appeal from the denial of a motion denominated "Motion for Records", seeking an order directing the clerk of the trial court to prepare and deliver, without cost to appellant, a transcript of the proceedings in a criminal case in which appellant was tried and convicted.

The jury's verdict appears to have been returned in the case in February, 1951, and on April 3, 1951 appellant was sentenced to serve a ten-year term to run concurrently with a state sentence. A week later appellant, who was represented throughout by counsel of his own choosing, gave notice of appeal. Application to appeal in forma pauperis was denied, and on May 21, 1951 the appeal was withdrawn and dismissed by stipulation of appellant's counsel. The present motion for records was filed in November, 1951, and was promptly denied by the trial court. This appeal followed.

No valid appeal from the conviction could have been taken as of November, 1951 because the time for appeal had long expired. Nor was any appeal from the conviction attempted then to be taken. It would have been futile in the circumstances to have granted the "Motion for Records" or to have directed that the records be transcribed at public cost. No appeal from the judgment is pending in which the transcript could be used in this court. In this posture the order complained of is not reviewable here, and the appeal from it is accordingly dismissed.