United States v. Edward Hanserd , 940 F.2d 663 ( 1991 )

940 F.2d 663

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 91-1645.

United States Court of Appeals, Sixth Circuit.

July 29, 1991.

1

Before KEITH and ALAN E. NORRIS, Circuit Judges, and WEBER, District Judge*.

ORDER

2

The defendant appeals his conviction and sentence entered pursuant to his plea of guilty to charges involving drug and firearm offenses. For purposes of 28 U.S.C. Sec. 1291, the final judgment was entered on May 13, 1991, when the conviction order and sentence was entered on the district court's docket sheet. The defendant filed his pro se notice of appeal in this case on May 31, 1991.

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 May 23, 1991, to file his notice of appeal. The notice of appeal filed on May 31, 1991 was not within that time period.

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). Rule 4(b) allows the district court, upon a showing of excusable neglect, to extend the time for filing a criminal appeal. No such extension was sought or granted.

5

The court notes that the defendant has another appeal pending in Case No. 91-1577 from the aforementioned conviction and sentence. The notice of appeal in Case No. 91-1577 was filed within the ten (10) day period mandated by Rule 4(b) and counsel has been appointed to represent the defendant in that appeal.

6

It is therefore ordered that the defendant's appeal in Case No. 91-1645 is dismissed sua sponte for lack of jurisdiction. Rule 9(b)(1), Local Rules of the Sixth Circuit. This order is without prejudice to the defendant's right to pursue his appeal in Case No. 91-1577.

*

The Honorable Herman J. Weber, U.S. District Judge for the Southern District of Ohio, sitting by designation