Partially Objecting to an Untimely Criminal Appeal
In United States v. Crump, the Third Circuit permitted the government to partially object to the untimeliness of a criminal appeal. That meant the court of appeals had to dismiss the appeal insofar as it raised the objected-to issues. But the court could address the other issues that the defendant raised on appeal.
Defendants in criminal cases have 14 days after the judgment is entered to file their notice of appeal. But unlike the civil-appeal deadline, the criminal-appeal deadline is not jurisdictional. So a late notice of appeal—and the notice in Crump was several months late—does not affect appellate jurisdiction.
Appellate courts nevertheless must enforce the criminal-appeal deadline if the opposing party objects. In Crump, the government partially objected to the timeliness of the defendant’s notice of appeal. The government objected to some sentencing-enhancement issues that the defendant raised. But it did not object to other issues, specifically whether the defendants had been convicted of crimes of violence.
The Third Circuit accordingly dismissed the appeal insofar as it challenged the sentencing enhancements. But since the government did not object to review of the crime-of-violence issues, the Third Circuit went on to review and reverse the district court’s decision on those issues.
I don’t recall ever seeing the government partially object to a late notice of appeal. But given the non-jurisdictional nature of the criminal-appeal deadline, I also don’t see any problem with this sort of partial objection. The appeal deadline exists in part to protect the appellee. And if the appellee wants to partially waive the protections of a non-jurisdictional appeal deadline, I see no reason not to allow it.
United States v. Crump, 2023 WL 7297334 (3d Cir. Nov. 6, 2023), available at the Third Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
Disclosure: I filed amicus briefs in support of the petitioner in Parrish in both the Fourth Circuit and the Supreme Court. In Parrish v. United States, the Supreme Court held that a notice of appeal filed before the appeal period is reopened under Federal Rule of Appellate Procedure 4(a)(6) relates forward to the date reopening […]
Continue reading....
Disclosure: I filed an amicus brief in the Fourth Circuit in support of rehearing its decision in this case and discussed the cert petition with the petitioner’s counsel. Last week, the Supreme Court granted certiorari in Parrish v. United States. The case asks if a would-be appellant must file a second notice of appeal after […]
Continue reading....
In Blackwell v. Nocerini, the Sixth Circuit held that a motion to reconsider reset the time to take a qualified-immunity appeal. The denial of immunity was immediately appealable and thus a “judgment” under the Federal Rules of Civil Procedure. So a motion to reconsider that denial was effectively a motion under Federal Rule of Civil […]
Continue reading....
In Gelin v. Baltimore County, the Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(A) applies to appealable interlocutory orders. So a motion to reconsider such an order resets the time to appeal. The court added that a motion can effectively be one seeking reconsideration even though the motion does not cite to Federal […]
Continue reading....
In Christmas v. Hooper, the Fifth Circuit held that the prison-mailbox rule applies to notices of appeal mistakenly sent to a court of appeals. In doing so, the court had to resolve a tension between two portions of Federal Rule of Appellate Procedure 4. Rule 4(c)(1) says that an imprisoned appellant’s notice of appeal is […]
Continue reading....Recent Posts
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.
Continue reading....
In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....