United States of America, Plaintiff-appellee, v. John Boyke, Defendant-appellant, 825 F.2d 408 (4th Cir. 1987)

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U.S. Court of Appeals for the Fourth Circuit - 825 F.2d 408 (4th Cir. 1987) Submitted May 19, 1987. Decided July 15, 1987

John Boyke, appellant pro se.

William Corley Lucius, Assistant U.S. Attorney, for appellee.

Before HALL, SPROUSE and WILKINSON, Circuit Judges.


After revocation of his probation, John Boyke filed a motion for correction of an illegal sentence, contending that the district court should have had an updated presentence report prepared before revoking Boyke's probation. Boyke styled his motion as one brought under Fed. R. Crim. P. 35. As a Rule 35 motion, it was untimely, being a challenge to the manner in which sentence was imposed which was filed more than 120 days after revocation of Boyke's probation. In view of Boyke's pro se status, however, we treat the motion as brought under 28 U.S.C. § 2255, which has no similar time restrictions. Construing Boyke's motion as a Sec. 2255 motion makes the 60-day civil appeal period rather than the 10-day criminal appeal period applicable, which makes Boyke's notice of appeal timely.

Having therefore reviewed Boyke's appeal on the merits, we can find no error in the district court's determination that Boyke was not entitled to relief on his claims. We accordingly affirm the denial of relief on the reasoning of the district court. United States v. Boyke, CR No. 82-76 (D.S.C., July 10, 1986). We dispense with oral argument because the dispositive issues recently have been decided authoritatively.