United States v. Richard H. Roberts

875 F.2d 868, 1989 U.S. App. LEXIS 7074, 1989 WL 51396

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 18, 1989
• Docket: 88-6190
• Status: Unpublished

Opinion

875 F.2d 868

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Richard H. ROBERTS, Defendant-Appellant.

No. 88-6190.

United States Court of Appeals, Sixth Circuit.

May 18, 1989.

Before MERRITT and NATHANIEL R. JONES, Circuit Judges, and DOUGLAS W. HILLMAN, Chief District Judge*.

ORDER

The defendant appeals his conviction for assault and criminal menacing. On March 29, 1989, this Court entered an order directing the defendant to show cause why his late criminal appeal should not be dismissed. The defendant has responded and has also moved for a transcript at government expense.

The district court entered an order on September 30, 1988, which affirmed the findings of the magistrate. Pursuant to Rule 4(b), Fed.R.App.P., defendant then had 10 days, i.e., until October 11, 1988, to file a notice of appeal. The defendants' notice of appeal was filed on October 12, 1988. The defendant's counsel, who was appointed to represent the defendant after the notice of appeal was filed by previous counsel, asserts that the district court order was mailed to counsel of record, and that, pursuant to Rule 26(c), Fed.R.App.P., three days should be added to the time period, extending the filing deadline to October 14, 1988.

Rule 26(c) does not add three days to a prescribed period of appeal under Rule 4, because the period for appeal runs from entry of the judgment, not from its service or receipt by the parties. United States v. Zuleta-Molina, 840 F.2d 157, 158 n. 1 (1st Cir.1988); Sofarelli Associates, Inc. v. United States, 716 F.2d 1395 (Fed.Cir.1983); Welsh v. Elevating Boats, Inc., 698 F.2d 230 (5th Cir.1983). Further, this Court is without jurisdiction to enlarge the prescribed time for appeal. See, Rule 26(b), Fed.R.App.P.; United States v. Willis, 804 F.2d 961, 963 n. 2 (6th Cir.1986). A timely filing of a notice of appeal is a mandatory and jurisdictional prerequisite which this Court cannot waive. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978).

It is ORDERED that the show cause order entered March 29, 1989, is discharged, and this action is dismissed for lack of jurisdiction. Defendant's motion for a transcript at government expense is denied as moot.

* The Honorable Douglas W. Hillman, Chief U.S. District Judge for the Western District of Michigan, sitting by designation