United States of America, Plaintiff-appellee, v. Maurice Lonnell Pointer, Defendant-appellant, 958 F.2d 372 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 958 F.2d 372 (6th Cir. 1992) March 25, 1992

Before KENNEDY and BOGGS, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.


The defendant appeals his conviction and sentence for conspiracy to possess with intent to distribute and to distribute cocaine and other related charges. For purposes of 28 U.S.C. § 1291, final judgment was entered on January 29, 1992, when the conviction order and sentence was entered on the district court docket sheet. The defendant filed his pro se notice of appeal on February 14, 1992.

In a criminal case, the notice of appeal by a defendant shall be filed in the district court within ten (10) days of the entry of judgment. Rule 4(b), Fed. R. App. P. In this case, the last day of the ten day period was a Saturday and, pursuant to Rule 26, Fed. R. App. P., the defendant had until Monday, February 10, 1992, in which to file his notice of appeal. The notice of appeal filed on February 14 was not within that time 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 court notes that the defendant has another appeal pending from the same conviction and sentence in Case No. 92-1161. The notice of appeal in Case No. 92-1161 was filed within the ten day period mandated by Rule 4(b) and the defendant has been granted in forma pauperis status in that appeal.

It is therefore ORDERED that the defendant's appeal in Case No. 92-1238 is dismissed sua sponte for lack of appellate jurisdiction. Rule 9(b) (1), Local Rules of the Sixth Circuit. This order is without prejudice to the defendant's right to pursue his appeal in Case No. 92-1161.