Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Oscar Flores, Defendant-appellant, 860 F.2d 1080 (6th Cir. 1988)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 September 19, 1988 order directing the defendant to show cause why this appeal should not be dismissed for lack of jurisdiction. On December 29, 1987, the district court entered the judgment and commitment order sentencing the defendant on separate counts of distribution of heroin and possession of a firearm by a convicted felon. The defendant filed a notice of appeal with the district court on May 31, 1988, one hundred ten (110) days late. The defendant has responded, conceding the untimeliness of his appeal.

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 of 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). 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. 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 September 19, 1988, is hereby discharged and this action is dismissed for lack of jurisdiction. Rule 9(b),1 Rules of the Sixth Circuit.