Opinion
CASE NO: 2:15-cr-6-FtM-38MRM
12-29-2015
UNITED STATES OF AMERICA v. MICHAEL EUGENE READ
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This matter comes before the Court on Defendant, Michael Eugene Read's Motion for Miscellaneous Relief (Doc. #58) filed on November 19, 2015. The United States of America (Government) did not respond to the Motion and the time to do so has expired.
BACKGROUND
On November 2, 2015, Read was sentenced to 120 months in prison followed by supervised release for life. At that time, Read was advised the only appeal that could be taken was for legal errors at sentencing. Read was informed that the sentence could not be appealed because he was not satisfied with the terms of the sentence.
On November 6, 2015, Defense attorney Donald Day left for vacation in a remote area of Montana. On November 10, 2015, Read met with Co-counsel Gerald Thomas Berry. After that meeting, Atty. Berry sent Atty. Day an e-mail informing him that Read wanted to appeal his sentence. Read stated that he believed legal errors were made at the sentencing.
Atty. Day states that he had no access to e-mail while on vacation and did not return from his vacation in Montana until November 13, 2015. The deadline for Read's appeal expired on November 16, 2015. Atty. Day states that he did not see the e-mail requesting an appeal until Read contacted him on November 18, 2015, to inquire about the appeal. Read now moves the Court to allow leave to file a belated appeal.
DISCUSSION
In a criminal case, a defendant's notice of appeal must be filed in the district court within fourteen (14) days of the entry of a judgment or the order being appealed. Fed. R. App. P. 4(b)(1)(A)(i). The District Court may extend the fourteen (14) day time limit of Rule 4(b)(1) upon a finding of good cause or excusable neglect for an additional period not to exceed 30 days from the expiration of the initial appeal period. United States v. Harris, 530 F. App'x 900, 901 (11th Cir. 2013) (citing Fed. R. App. P. 4(b)(4)). In criminal cases, the Eleventh Circuit has customarily treated a late notice of appeal filed within thirty (30) days of the expiration of the initial appeal period as a motion for extension of time to appeal under Rule 4(b)(4). Harris, 530 F. App'x at 901.
The deadline for filing Read's appeal expired on November 16, 2015. Atty. Day filed the Motion for a Belated Appeal on November 19, 2015. Atty. Day states his access to e-mail was limited during his vacation due to the remoteness of the area and he therefore, had no notice that Read wanted to file an appeal. After returning to Naples Florida, Atty. Day discovered that Read wanted to appeal his sentence. Given that Atty. Day was unavailable during the time Read's appeal should have been filed and he did not delay filing the appeal once he was aware of Read's desire, the Court finds excusable neglect in the failure to file Read's appeal. As such, the Motion to File a Belated Appeal is granted.
Accordingly, it is now
ORDERED:
Defendant Motion for Miscellaneous Relief (Doc. #58) is GRANTED. Defendant, Read has up to and including January 6, 2016, to file his Notice of Appeal.
DONE AND ORDERED at Fort Myers, Florida, this December 29, 2015.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE Copies: Counsel of Record