940 F. 2d 663 - United States v. Guardino

Before KENNEDY and MILBURN, Circuit Judges, and ZATKOFF, District Judge*.

This matter is before the court upon consideration of the appellant's response to this court's June 19, 1991, order directing him to show cause why appeal No. 91-5553 should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant responded stating that he filed his notice of appeal on December 6, 1990.

It appears from the record that the final order was entered November 19, 1990. On December 6, 1990, appellant mailed a motion for leave to proceed in forma pauperis, motion for extension of time for filing a notice of appeal and a notice of appeal. These documents were received and filed by the clerk on December 10. The December 10, 1990, notice of appeal was docketed as appeal No. 91-5552. On December 18, 1990, the district court granted the appellant an extension of time until December 12, 1990, for filing a notice of appeal. Appellant filed a second notice of appeal on March 27, 1991, which was docketed as appeal No. 91-5553. The notice of appeal filed on March 27, 1991, was 105 days late. Fed.R.App.P. 4(b) and 26(a).

The notice of appeal filed March 7, 1991, was one year late as to the judgment and commitment order and over five months late as to the order denying the Rule 35 motion. The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed.R.App.P. 4(b) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir.1987); United States v. Willis, 804 F.2d 961, 963 n. 2 (6th Cir.1986). Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

Accordingly, it is ORDERED that appeal No. 91-5553 be, and it hereby is, dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.