787 F. 2d 593 - United States of America v. Leonard Faymore

This matter is before the Court upon consideration of appellant's response to this Court's December 11, 1985, order to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late filed notice of appeal.

It appears from the record that the order denying the motion for reduction of sentence pursuant to Rule 35, Federal Rules of Criminal Procedure, was entered on June 11, 1985. A Rule 35 motion is filed in the original criminal action, and is therefore part of a criminal proceeding. A notice of appeal is therefore due to be filed within ten days from entry of the order denying the Rule 35 motion. Rule 4(b), Federal Rules of Appellate Procedure; United States v. Russo, 760 F.2d 1229 (11th Cir. 1985); United States v. Guiterrez, 556 F.2d 1217 (5th Cir. 1977); Johnson v. United States, 334 F.2d 880, 883 (6th Cir. 1964), cert. denied, 380 U.S. 935 (1965); Hixon v. United States, 268 F.2d 666 (10th Cir. 1959); United States v. Quon, 241 F.2d 161 (2nd Cir.), cert. denied, 354 U.S. 913 (1957). See also Heflin v. United States, 358 U.S. 415, 418 n.7 (1959). Rule 4(b) requires a notice of appeal to be filed, not mailed, within ten days. Mailing of a notice of appeal does not constitute filing, and an appellant is not entitled to three additional days. See Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983). The notice of appeal filed on June 24, 1985, was three days late.

It is ORDERED that the appeal be and hereby is dismissed. Rule 9(d)(1), Rules of the Sixth Circuit. However, this dismissal is without prejudice to any right appellant may have to file a motion for an extension of time in the district court pursuant to Rule 4(b), Federal Rules of Appellate Procedure, to file late his notice of appeal.