United States v. Benny E. Avery and Joseph W. Boothman

PER CURIAM.

After examining the briefs and the appellate record, this three judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Circuit R. 10(e). The case is therefore ordered submitted without oral argument.

Appellants Benny E. Avery (Avery) and Joseph W. Boothman (Boothman) seek to appeal two orders entered by the United States District Court for the District of Kansas. The first order denied defendants’ motion for a new trial based on newly discovered evidence. This order was dated and filed March 27,1981. The second order, dated and filed on May 5, 1981, denied defendants’ motion for leave to file an out of time notice of appeal from the order denying defendants’ motion for a new trial.

In view of our holding that we lack jurisdiction and that this appeal must be dismissed, a review of the relevant rule and facts may be related as follows.

Federal Rule of Appellate Procedure 4(b) covers the procedure to be followed when appealing a criminal case and states in pertinent part:

In a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from ... If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment ... A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

The chronology of events in the instant case are as follows:

(1) March 27, 1981 — An order was entered denying defendants’ motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, said motion being based on the ground of newly discovered evidence.

(2) April 28,1981 — Defendants’ motion to file an out of time notice of appeal based on excusable neglect.

(3) May 5, 1981 — An order was entered denying defendants’ motion to file an out of time notice of appeal finding that no excusable neglect existed.

(4) May 14, 1981 — Defendants appealed the May 5,1981 order to file an out of time notice of appeal.

According to Federal Rule of Appellate Procedure 4(b), the maximum amount of time to appeal, if the district court grants an extension, is 40 days. The time lapse between the date of the order denying a new trial and the first notice of appeal is 48 days in the current ease.

This court has held that, if the motion to file an out of time notice of appeal is filed within the thirty day extension period, the district court retains jurisdiction. The motion in the instant case was filed on April 28,1981, 30 days after the order denying the motion for a new trial was filed. Thus, the district court had jurisdiction to consider the defendants’ motion to file an out of time notice of appeal. United States v. Lucas, 597 F.2d 243 (10th Cir. 1979); See also United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Durham v. United States, 400 F.2d 879 (10th Cir. 1968); Buckley v. United States, 382 F.2d 611 (10th Cir. 1967), cert. denied 390 U.S. 997, 88 S.Ct. 1202, 20 L.Ed.2d 97 (1968); Selph v. Council of City of Los Angeles, 593 F.2d 881 (9th Cir. 1979).

Jurisdiction in the appellate court, however, is established upon the filing of a notice of appeal of the order denying a new trial within the maximum period of time allowed by the rule should the district court grant an extension based upon excusable neglect. The maximum amount of time given under Fed.R.App.P. 4(b) is forty days. In the instant case, forty eight days elapsed before any notice of appeal was filed. The forty day period commenced when the order denying the new trial was filed. The time period did not begin when the order denying the motion to file an out of time appeal was filed. United States v. Lucas, supra.

From the foregoing, it is unnecessary for this court to pass upon the question of excusable neglect.

APPEAL DISMISSED.