United States v. Thomas Eugene Martin

Martin was indicted for a violation of 18 U.S.Code, § 1010, entered a guilty plea, and on January 11, 1977 was sentenced to two years imprisonment, all but 45 days of which were suspended in favor of three years probation, and fined $3,000. The 45 days were to be served on “weekends.”

On July 7, 1978, after serving the 45 days and when Martin was still serving his probationary sentence, he filed a motion based on Rule 32(d), F.R.Crim.P., to withdraw his guilty plea.

The court held an evidentiary hearing and granted the motion on the ground that Martin’s attorney had given him erroneous advice at the time the guilty plea was accepted by the court and that “manifest injustice” required the court’s action. The government appeals.

The case still pends against Martin. No new plea has been entered and the case remains to be retried or dismissed.

There is little law on the appealability of a motion granted under Rule 32(d), F.R. Crim.P. The ruling is generally treated as an interlocutory step in criminal proceedings and not appealable by the United States under 18 U.S.Code, § 3731 (1976), the section which governs appeals by the United States in criminal cases. See United States v.…