Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Robert L. Alexander, Defendant-appellant, 918 F.2d 179 (6th Cir. 1990)Annotate this Case
Nov. 16, 1990
Before KRUPANSKY and MILBURN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.
This court entered an order on September 13, 1990, directing the appellant to show cause why the appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. The appellant's response stated that his late notice of appeal should be excused because he mistakenly thought that he had thirty days in which to file his appeal.
It appears from the record that the order denying the Fed. R. Crim. P. 33 motion for a new trial was entered April 11, 1990. The notice of appeal filed April 27, 1990, was four days late. Fed. R. App. P. 4(b) and 26(a).
The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(b) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987); United States v. Merrifield, 764 F.2d 436, 436-37 (5th Cir. 1985) (per curiam). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.
Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction without prejudice to any right of appellant to seek an extension of time from the district court for the notice of appeal. Rule 9(b) (1), Rules of the Sixth Circuit.