Notice of Appeal Deadline.

Within the federal system, criminal appeal deadlines will typically be shorter than those for civil appeal cases, though there are important exceptions that can apply in either instance.

Criminal Appeal Deadline

For criminal defendants, Federal Rule of Appellate Procedure 4(b)(1)(A) provides:

“In a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government’s notice of appeal.”

Accordingly, federal criminal appeal deadlines are generally measured from the date of entry of the judgment or order being appealed, subject to Rule 4(b)(1)(A)’s other trigger. Federal Rule of Appellate Procedure 4(b)(6), the rule that explains the scope of Rule 4(b)(1)(A) for federal criminal appeals, states:

“A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.”

Civil Appeal Deadlines

For civil cases, the timeframe for filing a notice of appeal depends on the types of parties involved in the case. In general, however, the civil appeal deadlines are either:

• 30 days
• 60 days

The civil appeal deadline will depend on whether the United States or one of its officers or employees is a party in the case.

• Civil appeal deadline when private parties are involved:

Generally speaking, when a civil appeal is filed by a private party, Federal Rule of Appellate Procedure 4(a)(1)(A) provides that:

“In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.”

• Civil appeal deadline when the United States is a party:

Generally speaking, when the United States or one of its officers or employees is a party in a civil appeal, Federal Rule of Appellate Procedure 4(a)(1)(B) provides:

“The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is: (i) the United States; (ii) a United States agency; (iii) a United States officer or employee sued in an official capacity; or (iv) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf.”

Which criminal postjudgment motions change when the appeal clock runs?

In criminal cases, the appeal deadline may be changed under Federal Rule of Appellate Procedure 4(b)(3)(A), but this rule depends on two interrelated factors. One factor involves the criminal postjudgment motions addressed in Criminal Rule 29, Criminal Rule 33, and Criminal Rule 34. The other factor involves the manner in which the notice of appeal was filed.

Filing a Notice of Appeal Before the Resolution of the Postjudgment Motion

For purposes of Criminal Rule 29, Criminal Rule 33, and Criminal Rule 34, filing a notice of appeal before the motion is resolved will typically trigger Federal Rule of Appellate Procedure 4(b)(3)(A)(i) or Federal Rule of Appellate Procedure 4(b)(3)(A)(ii), rather than the criminal postjudgment motion.

Accordingly, if a notice is filed before the motion is decided, the rule provides:

“A notice of appeal filed after the court announces a decision, sentence, or order-but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)-becomes effective upon the later of the following: (i) the entry of the order disposing of the last such remaining motion; or (ii) the entry of the judgment of conviction.”

the defendant still has the right to appeal the judgment in a criminal case.

Filing a Notice of Appeal After the Resolution of the Postjudgment Motion

Conversely, if a defendant timely makes a criminal postjudgment motion listed in Rule 4(b)(3)(A), the notice of appeal must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after entry of the judgment of conviction, whichever period ends later. Instead, the criminal defendant will typically have fourteen days after the later of the entry of the order disposing of the last such remaining motion or the entry of the judgment of conviction to file a notice of appeal.

If a notice of appeal is filed after the trial court grants a motion to dismiss, amend, orvacate a judgment, then the original 14-day deadline still applies.

Can a federal criminal appeal still be filed after fourteen days?

Under Federal Rule of Appellate Procedure 4(b)(4), if a criminal defendant missed the 14-day federal criminal appeal deadline:

“Upon a finding of excusable neglect or good cause, the district court may-before or after the time has expired, with or without motion and notice-extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).”

As a result, if you are filing a federal criminal appeal, it may still be possible to have the appeal heard if you missed the criminal appeal deadline. This is true both before and after the criminal appeal deadline has expired. The only question is whether it is possible to obtain a criminal appeal extension.

Criminal Appeal Extension Motion

If a criminal appeal deadline is missed, then filing an appropriate criminal appeal extension motion must be the first priority of filing a criminal appeal. This will be the case regardless of whether the judgment was entered before or after the criminal appeal deadline passed. As Federal Rule of Appellate Procedure 4(b)(4) notes, “Upon a finding of excusable neglect or good cause, the district court may-before or after the time has expired, with or without motion and notice-extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).” and this extension will run for “Upon a finding of excusable neglect or good cause, the district court may-before or after the time has expired, with or without motion and notice-extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).”

Criminal Appeal Extension Motion

An ordinary late filing does not automatically become timely just because a criminal defendant’s attorney files a late filing in his or her client’s case. However, filing a criminal appeal extension motion can protect your rights if filing late triggers a situation that would otherwise require that your appeal be dismissed. If the district court grants the extension, the appeal may move forward.

If any of this describes your situation, it is worth talking through with counsel. Spodek Law Group can be reached at 888 348 8028.

What late civil remedies exist after the ordinary appeal deadline?

For parties that miss the ordinary appeal deadline in a civil case, Federal Rule of Appellate Procedure 4(a)(5) provides: “The district court may extend the time to file a notice of appeal if: (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.” This is the typical remedy for parties that missed the ordinary appeal deadline in a civil case. “The district court may extend the time to file a notice of appeal if the party moves no later than 30 days after the time prescribed by Rule 4(a) expires and, regardless of whether the motion is filed before or during those 30 days, shows excusable neglect or good cause; if the motion is filed after expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.”

Federal Rule of Appellate Procedure 4(a)(6) provides for a very limited situation that allows a party to regain the right to appeal after the ordinary appeal deadline has passed. For parties seeking to regain the right to appeal under Rule 4(a)(6), they must file a motion to reopen the time to appeal and satisfy the Rule’s requirements, including that the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order within 21 days after entry and that no party would be prejudiced.

For parties seeking to regain the right to appeal under Rule 4(a)(6), this Rule also specifies when a notice of appeal must be filed to become timely. The Rule provides:

“The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order within 21 days after entry, the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier, and no party would be prejudiced.”

How do federal prisoner mailings and mistaken filings preserve a notice’s date?

When it comes to determining when a notice is filed in the federal court system, the rules are different when filing by mail, electronically, or in-person. This includes two exceptions that determine when a notice of appeal becomes timely.

Mailbox Rule for Prisoners

When it comes to prisoners’ notices of appeal, the mailbox rule protects the date of filing for parties in the federal court system. Specifically, Federal Rule of Appellate Procedure 4(c)(1) states:

“If an institution has a system designed for legal mail, an inmate confined there must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and: (A) it is accompanied by: (i) a declaration in compliance with 28 U.S.C. § 1746-or a notarized statement-setting out the date of deposit and stating that first-class postage is being prepaid; or (ii) evidence showing that the notice was so deposited and that postage was prepaid; or (B) the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i).”

If a criminal prisoner’s notice of appeal is not timely filed, the prisoner must then address the notice under Rule 4(b)(4), which explains the exception that allows a criminal defendant to file a notice of appeal after the 14-day deadline has passed. To invoke the mailbox rule’s protections, the prisoner must “If an institution has a system designed for legal mail, an inmate confined there must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing and: (A) it is accompanied by: (i) a declaration in compliance with 28 U.S.C. § 1746-or a notarized statement-setting out the date of deposit and stating that first-class postage is being prepaid; or (ii) evidence (such as a postmark or date stamp) showing that the notice was so deposited and that postage was prepaid; or (B) the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i).”

Mistakenly Filed Notice of Appeal

If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk; the notice is then considered filed in the district court on the date so noted, under Federal Rule of Appellate Procedure 4(d).

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.