Robert E. Morgan v. United States

The above named appellant has filed here a motion which he calls a motion to “temporarily abandon his pending appeal * * * for the limited purpose of presenting to the original trial court his motion pursuant to Rule 35 of Fed.Rules of Crim. Procedure [18 U.S.C.A.] to Correct Illegal Sentence. * * *."

It appears that the appellant, after being convicted of a criminal offense in the district court, appealed from the judgment of conviction to this court. Thereafter he filed a motion in the trial court asking that court to correct his sentence alleged to be illegal. The trial court denied the motion on the ground that since an appeal from the sentence had been taken to this court, the trial court was without jurisdiction to entertain the motion. We construe the motion of appellant now before us as one seeking to remand the cause to the district court to permit the district court to entertain the motion under Rule 35 referred to by the appellant.

In the case of Smith and Corey v. United States, 9 Cir., 294 F.2d 771 , we set forth the proper procedure for procuring such a remand for the purpose of permitting action in the district court upon sundry motions after the filing of an…