Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Harold Wayne Morgan, Defendant-appellant, 931 F.2d 57 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 931 F.2d 57 (6th Cir. 1991) April 23, 1991

Before DAVID A. NELSON and SURHREINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.


On February 21, 1991, Case No. 91-6409 was remanded to the district court for the defendant to file a motion for an extension of time in which to file his criminal appeal. The district court granted the defendant's motion for an extension on March 14, 1991. Upon consideration, the court concludes there is jurisdiction over the defendant's appeal in Case No. 90-6409.

The judgment and commitment order appealed from in Case No. 90-6409 was entered on the district court docket sheet on October 5, 1990. The defendant filed a second notice of appeal from the October 5 order on March 12, 1991. That appeal has been docketed with this court as Case No. 91-5344. Rule 4(b), Fed. R. App. P., allows the district court, upon a showing of excusable neglect, to extend the time for filing a notice of appeal for a period not to exceed thirty days from the expiration of the ten-day appeal time. The notice of appeal filed on March 12 was beyond the thirty-day extension period. 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). The defendant's appeal in Case No 91-5344 must, therefore, be dismissed for lack of jurisdiction.

It is ORDERED that the motion to dismiss Case No. 90-6409 is denied. The show cause order issued in Case No. 90-6409 is discharged. The defendant's appeal in Case No. 91-5344 is dismissed sua sponte for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.