United States v. Edward P. Wolfram, Jr. , 843 F.2d 1393 ( 1988 )

843 F.2d 1393

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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.
Edward P. WOLFRAM, Jr., Defendant-Appellant.

No. 87-4141.

United States Court of Appeals, Sixth Circuit.

April 4, 1988.

1

Before LIVELY, Chief Judge, RALPH B. GUY, Jr., Circuit Judge, and AVERN COHN, District Judge.*

ORDER

2

This matter is before the court upon consideration of the appellee's motion to dismiss the appeal as premature and the response of the appellant seeking to stay the appellate proceeding and remand the case to the district court for ruling on a pending motion.

3

A review of the record reflects that Wolfram pled guilty to securities fraud and false statements in violation of 15 U.S.C. Sec. 77q(a) and 18 U.S.C. Sec. 1001. The judgment and commitment order was entered September 6, 1983. A motion to withdraw the guilty plea and for reduction of sentence pursuant to Fed.R.Crim.P. 35 was filed on November 14, 1983. Withdrawal of the guilty plea was denied on July 30, 1984. The motion for reduction of sentence was denied on December 3, 1987. A motion to reconsider the December 3, 1987, order was filed on December 7, 1987. Wolfram appealed on December 14, 1987, from the December 3, 1987, order and "all previous judgments and orders." No ruling has been made on the December 7, 1987, motion for reconsideration.

4

The December 7, 1987, motion to reconsider filed within ten days after entry of the December 3, 1987, order denying the Fed.R.Crim.P. 35 motion tolled the appeals period. Cf. United States v. Russo, 760 F.2d 1229 (11th Cir.1985) (per curiam); United States v. Janovich, 688 F.2d 1227 (9th Cir.1982); United States v. Cook, 670 F.2d 46 (5th Cir.1982). The filing of a motion to reconsider the denial of a Rule 35 motion nullifies a notice of appeal filed before the ruling on the motion to reconsider. United States v. Nand, 830 F.2d 768 (7th Cir.1987) (per curiam); United States v. Gargano, 826 F.2d 610 (7th Cir.1987). Therefore, this part of the appeal is premature, and the court is without jurisdiction to entertain the appeal.

5

Also, appellant in his notice of appeal has appealed from "all previous judgments and orders." His judgment of conviction was entered on September 6, 1983, and the order denying withdrawal of his guilty plea was entered on July 30, 1984. Fed.R.App.P. 4(b) requires that a notice of appeal in a criminal case to be filed within 10 days of entry of the judgment of the order from which the appeal is taken. So much of appellant's appeal that may be construed as being from the 1983 judgment and 1984 order is late. United States v. Willis, 804 F.2d 961, 962 (6th Cir.1986). The court is without jurisdiction to entertain the appeal.

6

It is ORDERED that the motion to dismiss be granted and the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit.

*

The Honorable Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation