Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Dennis J. Stokes, Defendant-appellant, 928 F.2d 1134 (6th Cir. 1991)

ORDER

This matter is before the court upon the motion of the United States to dismiss Case No. 90-3841 as untimely and to transfer the record and all pleadings to Case No. 91-3114. The defendant has not responded to the motion.

The defendant was convicted of willfully failing to account for and pay diesel fuel excise taxes and failing to file quarterly excise tax returns. On August 9, 1990, the district court issued a judgment imposing sentence. However, the district court did not notify the defendant of his right to appeal at that time. Subsequently, the government filed a "Motion to Notify the Defendant of His Right to Appeal", and the defendant filed a motion to extend the time for appeal. The district court entered an order on September 24, 1990, granting the defendant an extension of time to appeal. The defendant filed a notice of appeal following entry of that order, which was 47 days after the judgment had been entered. That appeal was docketed as Case No. 90-3841.

A district court may extend the period for appeal in a criminal case for an additional 30 days from the expiration of the appeal period. Fed. R. Crim. P. 4(b). Later, realizing that the prior extension was beyond that permitted by the rule, the district court vacated the original judgment, resentenced the defendant, and advised him of his appeal rights. A judgment to this effect was entered on January 28, 1991. The defendant filed a timely notice of appeal from that judgment which has been docketed as Case No. 91-3114.

It is therefore ORDERED that the defendant's appeal in Case No. 90-3841 is dismissed. The record and all other necessary pleadings which have been filed in that case shall be transferred and filed in Case No. 91-3114.