The opinion of the court was delivered by: STANLEY S. HARRIS
Before the Court is defendant's Motion To Vacate Sentence So That Defendant May File His Notice of Appeal and the government's opposition thereto. Although this Court believes that such a practice is an unwise circumvention of the time limits for appeal established in the federal rules, it believes that it is bound by the applicable case law to grant the motion.
Defendant Ramos was arrested with his codefendant Johnny Dockery on August 31, 1989. A seven-count indictment was returned charging both defendants on September 28, 1989. Defendant Ramos's present counsel, Douglas J. Wood, entered his appearance on behalf of Ramos on October 17, 1989. He then identified himself as being a part of Roberts, Wood & Grimm, whose "Grimm" -- presumably Bernard S. Grimm -- ultimately became counsel for Ramos during the trial.
On April 9, 1990, the jury found defendant Ramos guilty on all of the counts of the indictment which charged him with drug offenses (Counts 1, 2, 4, and 5); it found him not guilty on Count 6, which charged him with using or carrying a firearm during and in relation to a drug trafficking offense.
Rule 4(b) of Federal Rules of Appellate Procedure
Under Rule 4(b) of the Federal Rules of Appellate Procedure, a notice of appeal by a criminal defendant must be filed within ten days after the entry of judgment. See Fed. R. App. P. 4(b). However, the Rule also provides that:
Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
It is clear that defendant Ramos has not met the time requirements under either of the routes provided by Rule 4(b).
In United States v. Robinson, the Supreme Court held that the time restrictions on filing an appeal were jurisdictional. See United States v. Robinson, 361 U.S. 220, 80 S. Ct. 282, 288, 4 L. Ed. 2d 259 (1960). In considering a previous version of the federal rules, the Supreme Court held that courts did not have the authority under the rules to extend the time for filing an appeal. The Court noted that:
Rule 45(b) says in plain words that ". . . the court may not enlarge . . . the period for taking an appeal." The courts have uniformly held that the taking of an appeal within the ...