Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.united States of America, Plaintiff-appellee, v. Barbara Olson, Defendant-appellant, 931 F.2d 64 (10th Cir. 1991)

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US Court of Appeals for the Tenth Circuit - 931 F.2d 64 (10th Cir. 1991) April 24, 1991

Before TACHA, BARRETT and BALDOCK, Circuit Judges.


TACHA, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

This is an "Emergency Appeal" ostensibly taken by defendant-appellant from an interlocutory order of the district court entered March 8, 1991, which denied defendant's post-verdict, presentencing motion to arrest judgment in a criminal case. The matter is before the court on defendant's motion for stay pending appeal.

The record shows that the jury's verdict was returned on February 26, 1991, and sentencing set for May 9, 1991. On March 5, 1991, defendant filed, pro se, a motion to arrest judgment. That motion was denied by the district court's order on March 8, 1991.

Approximately twenty-four days later, on April 2, 1991, defendant filed a "Notice of Motion for Stay on Emergency Appeal," which was treated by the district court as a notice of appeal from the March 8 order. Whether the "Notice of Motion" was a sufficient notice of appeal is a question which need not be reached.

The threshold question is whether this court has jurisdiction to entertain the purported appeal. Under Fed. R. App. P. 4(b), a notice of appeal must be filed in the district court within ten days after the judgment or order appealed from. Here, it is clear that a notice of appeal was not filed within the time allowed by Rule 4(b). It is well established that a timely notice of appeal is both mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 224 (1960). Accordingly, we conclude that this court is without jurisdiction, and that the appeal must be dismissed. In view of our disposition of the appeal, the motion for stay is denied as moot.

After the imposition of sentence and the entry of final judgment, appellate review of the criminal conviction may be sought by filing a notice of appeal which complies with the requirements of Rule 4(b).

Appeal DISMISSED. The mandate shall issue forthwith.


This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3