United States v. Richard C. Pelfrey , 915 F.2d 1574 ( 1990 )

915 F.2d 1574

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Richard C. PELFREY, Defendant-Appellant.

No. 90-3731.

United States Court of Appeals, Sixth Circuit.

Oct. 1, 1990.

Before KEITH and RALPH B. GUY, Jr., Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

1

This matter is before the Court on the defendant's response to the Court's order of September 9, 1990 directing the defendant to state why his appeal should not be dismissed for lack of jurisdiction.

2

The defendant appeals the sentence imposed pursuant to his guilty plea to mailing threatening communications. For purposes of 28 U.S.C. 1291, the final judgment was entered on July 23, 1990 when the judgment and conviction order was entered on the district court's docket sheet. The defendant filed his notice of appeal on August 17, 1990.

3

Pursuant to the provisions of Rule 4(b), Fed.R.App.P., the defendant had ten (10) days from the entry of judgment, i.e., until August 2, 1990 in which to file his notice of appeal. The notice of appeal filed August 17, 1990 was not within that time period. The defendant's counsel states in her response and supplemental response that she believed she had thirty days in which to appeal the sentence.

4

Timely filing of a notice of appeal is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978); United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir.1987). Fed.R.App.P. 4(b) allows the district court, upon a showing of excusable neglect, to extend the time for a criminal appeal provided the motion to extend is filed within 40 days of the judgment. No such extension was sought or granted.

5

It is therefore ORDERED that the show cause order of September 9, 1990, is discharged, and this appeal is dismissed sua sponte for lack of jurisdiction. Rule 9(b), Local Rules of the Sixth Circuit.