Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Henry Chaney, Defendant-appellant, 860 F.2d 1080 (6th Cir. 1988)

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U.S. Court of Appeals for the Sixth Circuit - 860 F.2d 1080 (6th Cir. 1988) Oct. 25, 1988

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and CONTIE, Senior Circuit Judge.


ORDER

This matter is before the Court upon consideration of this Court's October 3, 1988 order directing the defendant to show cause why this appeal should not be dismissed for lack of jurisdiction. On October 15, 1987, the district court entered the judgment and commitment order sentencing the defendant to a fifteen year sentence for his conviction for conspiracy with intent to distribute controlled substances and income tax evasion. The defendant filed notice of appeal on August 22, 1988, three hundred two (302) days late. The defendant has now responded to the show cause order, attributing the delay to misrepresentation by defendant's counsel.

Rule 4(b), Fed. R. App. P., provides that a notice of appeal in a criminal action must be filed within ten days from the entry of judgment. The final judgment for purposes of 28 U.S.C. § 1291 in a criminal action is the sentence. Berman v. United States, 302 U.S. 211, 212 (1937). Timely filing of a notice appeal is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Browder v. Director, Dep't of Corrections of Illinois, 434 U.S. 257, 264 (1978); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). The appellant may move the district court for an extension of time in which to appeal upon a showing of excusable neglect, provided that such a motion is made within forty (40) days from the entry of judgment. Rule 4(b), Fed. R. App. P. ; United States v. Robinson, 261 U.S. 220, 224 (1960). In the present case, however, such an extension of time was neither sought nor granted. Accordingly,

It is ORDERED that the show cause order entered October 3, 1988, is hereby discharged and this action is dismissed for lack of jurisdiction. Rule 9(b), (1) Rules of the Sixth Circuit.