*1 ‘strictly search must be warrantless “[a] exigencies which LITTLE,
circumscribed
Robert L.
a/k/a Morrell
justify
simply
its initiation’ and it
cannot
Watson, Appellant,
justi-
be
search was
contended
emergency threatening life or
fied
STATES, Appellee.
UNITED
Ohio,
[Citing
Terry
limb.”
392 U.S.
1868, 1882,
88 S.Ct.
We to hold that the seriousness of investigation
the offense under itself cre exigent
ates circumstances of the kind justi
that under the Fourth Amendment
fy [Mincey v. Ari a warrantless search.
zona, supra 437 at
2414.] jurisdiction
The circuit court in this might
suggested guidelines as to what con exigent
stitute circumstances. In Dor such
man v. United (1970), Judge
forth a number of material considerations:
(1) grave (2) the offense is involved sus (3) reasonably believed to armed
pect is be showing probable
clear cause to believe (4) suspect offense committed the suspect strong to believe that the reason premises being entered and suspect escape
likelihood that the will if not
swiftly apprehended. the considerations ad-
At least three of missing are by Judge
vanced Leventhal Although police
here. knew that (who armed) might
lant Ruth be was on the
premises they initially at the time entered house, they knew he had been arrested custody premises
and was in outside the entry and
the time of the second search of room; they suspect posed knew the
danger escape, as to as to destruction
contraband, police safety or as to when and ascended to his
reentered the house entry in hot
room. This was neither an
pursuit, exigent nor under I protective
nor was this a search. would im- suppress
hold that the motion to appellant Ruth.
properly denied as to the *2 NEWMAN, MACK, Judge,
Before Chief PAIR, Judge, Associate and Associate Judge, Retired.
MACK, Judge: Associate appeal In this we review the trial court’s denial, hearing, appellant’s pro without a petition se for reconsideration of earlier rejecting court order a motion under D.C. Code 23-110 for vacation of sen- § tence resentencing. Finding that failing trial court erred in to conduct a hearing to determine the merits of allegations, lant’s we reverse and remand. Following conviction, appellant trial and was sentenced on November 1977 to a period of years incarceration of 5 to 15 one count of assault with intent to kill (D.C.Code 22-501, while armed §§ -3202) and one-year to a concurrent sen- tence for one count of carrying pistol (D.C.Code 1973, without a license 22- 3204).
During sentencing the trial court advised appeal that he had a that if he desired the clerk would prepare and file a notice of No notice of appeal However, direct was filed. on De- cember 1977defense counsel filed a mo- tion for modification and reduction of sen- pursuant tence Super.Ct.Cr.R. 35. On January 1978 the motion was denied. pursuant
In October 1978 to D.C. 1973, 23-110(a)(4)1appellant Code filed a pro se motion for vacation of sentence and resentencing2 claiming that trial counsel Waring, Paul D. appointed by court, this failed to file a was on the appellant. brief for Dennis M. despite appellant’s conviction request that O’Keefe, D.C., Washington, appointed by judge he do so. The trial denied the motion court, also appearance entered an hearing without a in December 1978. No appellant. appeal was taken. Ruff, Charles F.C. Atty., and John On filed a Terry, A. Michael W. Farrell and Harold seeking second se motion to vacate the Damelin, Attys., Washington, Asst. U.S. previous denying appellant’s court’s appellee. D.C. were on the brief for motion for vacation of sentence. On March 1. D.C.Code § 23-110. Remedies on mo- 2. Where a defendant is resentenced attacking tion sentence direct from conviction is restored. States, D.C.App., Hines v. United (1968). (a) prisoner custody under sentence of preserve right, To that the defendant claiming Court to be must file notice resentencing. within ten upon ground released ... subject sentence is otherwise to collateral attack, vacate, may move the court to set aside, or correct the sentence. argued consider It is the motion diction to judge 1979 the trial denied Butler v. hearing the motion ruling without a (1978), a filed two proffer sufficient collateral lacked merit failed to limit, upon beyond ten-day which relief estab- factual v. United the “outer limit” of Fallen granted. could be lished 378 U.S. from L.Ed.2d *3 by Of- 19th order was received the March Clerk, Court, Fallen, April case, of the on fice the notice of In criminal 10,1979.3 In an letter dated accompanying appeals was the court of received 30,1979 appellant due explained March that set days beyond time limit out in four the Re- mix-up delivery in mail at Lorton to a reversing the rules. In lower the court formatory he did not notice of the receive court, that Supreme noted court the Court until March 1979.4 In connection to have an in- rigid are not “a code rules one appointed this counsel was with meaning of the circum- irrespective flexible month later.5 Id. at 1691. stances.” Fallen’s control beyond circumstances Since ap- considering merits of the Before the Supreme the Court filing, prevented government’s must the peal, we address jurisdic- appeals had held that the court of juris- that this is without contention court appeal. consider the tion to deciding the this diction to hear 11(b)(1) issue, D.C.App.R. we assume that Fallen, appellant Like Butler and appeal in (requiring filing of a notice incarcerated without assistance of was entry days “within after criminal case ten the the March 19th order counsel at judgment or which the order from Fallen, the date the was received. Like ”) applicable.6 ... appeal is taken accompanying his top of letter (March 30,1979) was with was denied notice of The motion in the instant case envelope ten-day The in presence limitation. March outside on might were sent proceeding Since which the notice and letter who was appellant se. indicating provided postmark jacket court does not include docket have However, it is was in date on which it was mailed. indicating when the order fact entry is, presumably, Williams United part record and appellant, mailed States, D.C.App., 412 lost. ten-day peri- concedes that the
government us and in In view of facts before to run on the date on which od commenced Super. of the admonition consideration received the order —March be construed 2 that the rules “shall Ct.Cr.R. 1979. simplicity fairness in procedure, to secure in the elimination un- since the administration and government contends that we hold that justifiable expense delay,” was received the court jurisdiction (14 to consider the this court April on juris- notice), appeal.7 this is without received court Analogous envelope courts filed in federal un- in letter was 6. motions
3. The which governed part “are records. der 28 U.S.C. mailed is not the court ” United the rules for civil cases.... States challenge n.12, government Tindle, this con- does not 4. The F.2d tention. 693 n. 12 appellate filed with counsel In October (notice interpret in Butler We the statement for relief under the trial court another motion days late) finding jurisdiction filed two in de- The trial court § 23-110. (notice extending Fallen court was petition on 1979 on the nied October late) limit” to mean its to its “outer four allegations in the accom- set out basis that factual outer limit. ap- panying previously raised affidavit were pellant’s the trial 1978 motion which October appeal No court denied. merits, Turning we the timeliness of the from the March note judge, conducting the trial order, without a hear appealability rather the ing, denied the previ vacate his It place. of that order the first is settled ous on the bases that the motion jurisdiction now that this court’s is limited proffer lacked merit and failed to sufficient judgments. of final review orders upon factual which relief Butler v. United granted. be could Brown v. alleged in- that he D.C.App., 379 A.2d D.C. sentencing formed the court at and in 11-721(a). it is almost Code Since presence of trial that he counsel intended appealable too clear discussion that (Appellant sen- concedes that review,1 brought order has been here for I tencing transcript col- does reflect this jurisd would dismiss the for want of loquy.) alleged following He further iction.2 messages his incarceration left he several helpful, Perhaps putting it would be *4 with counsel’s requesting office counsel to perspective, the issue in to set forth a chro- concerning right contact him his appeal. to nology the case: of However, not counsel did return the calls. appellant prompted A letter from by a visit counsel on During December Appellant 11/ 9/77 sentenced. 1)
visit counsel informed
12/22/77 Motion for reduction of
2)
notice of
been
had
filed and that
by appellant’s
sentence filed
attorney.
despite
objections counsel would
Motion
1/23/78
denied.
a
file motion for modification and reduction
Pro se
10/ 2/78
motion for vacation of
of sentence.
resentencing
sentence and
Appellant’s
vague,
allegations are neither
filed. Motion
stressed
v.
conclusory wholly
Gibson
or
incredible.8
attorney
to file
failed
D.C.App.,
United
1214
388 A.2d
appeal.
of
(1978).
true,
allegations,
The
if
Motion
a
merit relief
12/ 5/78
denied without
hearing,
appeal.
but no
in the form of vacation of sentence and
Pro se
vacate order
2/ 1/79
motion to
resentencing,
thereby restoring appellant’s
denying
for vacation
Hines v. United
to
appeal.
a direct
resentencing,
of sentence and
States,
D.C.App.,
(1968).
A.2d
237
829
grant
hearing.
and to
a
Thus, we remand with instructions
con-
to
Motion denied.
3/19/79
a hearing
duct
determine
truth of
Pro se notice of
4/10/79
allegations.
Appellate
appointed.
counsel
5/14/79
Counsel
to vacate
10/23/79
filed motion
ordered.
So
sentence.
Motion denied. No
10/25/79
PAIR,
Retired,
Judge,
Associate
dissent-
counsel
briefs
2/19/80
ing:
on
but did not
my
The crucial issue in this case —the one
of motion to
10/25/79 denial
colleagues have
not
declined
address —is
vacate.
government
finality contemplated
allegations
dispositional
D.C.Code
8. The
concedes that the
11-721(a).
Cap
are sufficient
to warrant
See
v. National
motions
DeFoe
§
hearing.
D.C.Mun.App.,
Washington,
a
of
90
ital Bank
(1952);
Trigg,
Brooks v.
D.C.Mun.
A.2d 242
(1947);
order denied motion to
1. The March
1979
a
App.,
Jacobsen
A.2d
223, 225,
an
denied a
va-
Jacobsen,
vacate
order which
motion to
126 F.2d
23-110,
cate,
pursuant
to D.C.Code
(1942).
imposed
appellant’s convictions
sentences
assault with
to kill while armed
intent
Alexander, D.C.App., 428 A.2d
In re
carrying
pistol
without
license. The
Jones, D.C.App.,
States v.
accomplished nothing which disturbed
v. District of
Irani
Co
was
status
felon and
lant’s
as a convicted
(1972).
lumbia, lacking
essential element of
therefore
in the
fairly
rejected
a conten-
foregoing
The
of
are
This court
such
facts
record
for reconsideration of the December
expedient
tion of
stated
ruary
important exception,
All of
with
this is consistent
So it was in the
at bar. The Decem-
case
if
lost
can be so
easily
denying
1978 order
the motion to
ber
restored,
4(a)
(b)
our Rule
would be
was final and
vacate
sentences
frustrated
jurisdictional
purpose.
appealable.
23-110(f).
its
Robinson,
United States v.
80 Appellant
.that
failed to exercise
court more entry than 60 expungement “Proposed order of Fi- Order,”
nal spelling the additional out relief
to which he felt entitled. trial court
treated the submission as a motion for re-
consideration, any but denied additional re- followed,
lief. An appeal which this court