UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES RUSSO, JR., DEFENDANT-APPELLANT
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The court held that it lacks jurisdiction to hear the appeal because the notice of appeal was untimely filed.
The district court denied a Rule 35 motion for sentence reduction. Appellant filed a motion for reconsideration, which was also denied. The notice of …
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PER CURIAM:
This is an appeal from the denial of a Rule 35 motion for reduction of sentence. Fed.R.Crim.P. 35. The Court lacks jurisdiction because the notice of appeal was untimely.
The district court denied the Rule 35 motion on June 8, 1984. On June 22, 1984 appellant filed a motion for reconsideration. On July 16, 1984 the motion was denied. A notice of appeal from the denial of the Rule 35 motion and the motion for reconsideration was filed on July 26, 1984.
A Rule 35 motion is a proceeding in the original criminal action in which a notice of appeal must be filed within ten days from the entry of the judgment or order appealed from. Fed.R.App.P. 4(b). United States v. Guiterrez, 556 F. 2d 1217 (5th Cir. 1977). This Court is without jurisdiction to review the district court’s June 8, 1984 order denying the Rule 35 motion since appeal was not noticed therefrom until July 26, 1984.
A motion for reconsideration of the denial of a Rule 35 motion must be filed within the period of time allotted for the filing of a notice of an appeal in order to extend the time for filing a notice of appeal. United States v. Cook, 670 F. 2d 46, 48 (5th Cir.), cert. denied, 456 U.S. 982, 102 S.Ct. 2255, 72 L.Ed.2d 860 (1982). See United States v. Rothseiden, 680 F. 2d 96, 97 (11th Cir.1982). In this case, the motion for reconsideration would have been timely only if filed within ten days of the entry of judgment. Fed.R.App.P. 4(b). The judgment denying the Rule 35 motion was rendered on June 8. The June 22 motion for reconsideration filed over ten days after entry of the order was therefore untimely. Consequently, the motion for reconsideration does not extend the time for appeal from the Rule 35 denial, and this Court is without jurisdiction to review the district court’s denial of the motion for reconsideration. Cook, 670 F. 2d at 48-49. There is no reason to remand for a finding of excusable neglect since the appeal was not noticed until more than forty days after the date of the original judgment. Fed.R. App.P. 4(b). See United States v. Shillingford, 568 F. 2d 1106, 1107 (5th Cir. 1978).
This Court has no jurisdiction to hear this appeal so it must be dismissed.
APPEAL DISMISSED.
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United States v. Carlos C. Vicaria, M.D., 963 F.2d 1412 (11th Cir. 1992)….Ct. 553, 11 L.Ed.2d 527 (1964). A motion for reconsideration in a criminal case must be filed within the period of time allotted for filing a notice of appeal in order to extend the time for filing the notice of appeal. See United States v. Russo, 760 F. 2d 1229, 1230 (11th Cir.1985). Therefore, in a criminal case, the government has thirty days in which to seek reconsideration of a final judgment or other appealable order. See 18 U.S.C. § 3731; Fed.R.App.P. 4(b). In United States v. Milian-Rodriguez, 759…
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United States v. Miller, 869 F.2d 1418 (10th Cir. 1989)…33 is timely if filed within ten days of the entry of the judgment or order. Fed.R.App.P. 4(b). Defendant’s motion for reconsideration filed twenty-one months after denial of the motion for new trial was not timely. See also United States v. Russo, 760 F. 2d 1229, 1230 (11th Cir.1985). Defendant has urged us to adopt the reasoning of other courts, such as United States v. Doherty, 675 F.Supp. 726 (D.Mass.1987) (where the court held that it had jurisdiction to reconsider a motion for new trial when there was…
Authorities Cited
- United States v. Rothseiden, 680 F.2d 96 (11th Cir. 1982)
- United States v. Guiterrez, 556 F.2d 1217 (5th Cir. 1977)
- Maxwell v. United States, 456 U.S. 982 (U.S. 1982)
- Fince v. United States, 456 U.S. 982 (U.S. 1982)
- United States v. Shillingford, 568 F.2d 1106 (5th Cir. 1978)
- Church OF GOD (Worldwide Tex. Region) v. Amarillo Indep. Sch. Dist., 670 F.2d 46 (5th Cir. 1982)