The proposed amendment also eliminates an ambiguity from the third sentence of this subdivision. Prior to this amendment, the third sentence provided that if one of the specified motions was filed, the time for filing an appeal would run from the entry of an order denying the motion. That sentence, like the parallel provision in Rule 4, was intended to toll the running of time for appeal if one of the posttrial motions is timely filed.
Amendment Of Appeal Notice
Again, the Advisory Committee does not intend to make any substantive change in this paragraph. But because Fed. P. 6 and Fed. R. App.
P. 26 have different methods for computing time, one might be uncertain whether the 10-day period referred to in Rule 4 is computed using Civil Rule 6 or Appellate Rule 26. Because the Rule 60 motion is filed in the district court, and because Fed. P. 1 says that when the appellate rules provide for filing a motion in the district court, “the procedure must comply with the practice of the district court,” the rule provides that the 10-day period is computed using Fed. P. 6 . Reopening may be ordered only upon a motion filed within 180 days of the entry of a judgment or order or within 7 days of receipt of notice of such entry, whichever is earlier. This provision establishes an outer time limit of 180 days for a party who fails to receive timely notice of entry of a judgment to seek additional time to appeal and enables any winning party to shorten the 180-day period by sending its own notice of entry of a judgment, as authorized by Fed. P. 77 .
Winning parties are encouraged to send their own notice in order to lessen the chance that a judge will accept a claim of non-receipt in the face of evidence that notices were sent by both the clerk and the winning party. Receipt of a winning party’s notice will shorten only the time for reopening the time for appeal under this subdivision, leaving the normal time periods for appeal unaffected. The trial court judge shall promptly certify the judgment or order and summary findings of fact and conclusion of law, together with the Petition initiating the proceeding, and either a stipulation of the facts or an electronic transcription of the evidence taken in the proceeding.
Further, since a notice of appeal filed before the disposition of a post trial motion, even if it were treated as valid for purposes of jurisdiction, would not embrace objections to the denial of the motion, it is obviously preferable to postpone the notice of appeal until after the motion is disposed of. The failure of the courts of appeals to apply Rule 4 as written has also created tension between that rule and Rule 4.
The Appeal Hearing
These certified documents shall constitute the Record on Appeal. The trial court shall promptly transmit the Record on Appeal to the Clerk. No motion to correct error or Notice of Appeal shall be filed. Permitting an inmate to file a notice of appeal by depositing it in an institutional mail system requires adjustment of the rules governing the filing of cross-appeals.
In a civil case, the time for filing a cross-appeal ordinarily runs from the date when the first notice of appeal is filed. If an inmate’s notice of appeal is filed by depositing it in an institution’s mail system, it is possible that the notice of appeal will not arrive in the district court until several days after the “filing” date and perhaps even after the time for filing a cross-appeal has expired. To avoid that problem, subdivision provides that in a civil case when an institutionalized person files a notice of appeal by depositing it in the institution’s mail system, the time for filing a cross-appeal runs from the district court’s receipt of the notice. The amendment makes a parallel change regarding the time for the government to appeal in a criminal case.
As amended in 1998, Rule 4 permits the district court to extend the time for filing a notice of appeal in a criminal case for an additional 30 days upon a finding of excusable neglect or good cause. Both Rule 4 and the Advisory Committee Note to the 1998 amendment make it clear that an extension can be granted for either excusable neglect or good cause, regardless of whether a motion for an extension is filed before or during the 30 days following the expiration of the original deadline. Subdivision , paragraph . Item in subparagraph of Rule 4 provides that filing a motion for relief under Fed.
R. Civ. P. 60 will extend the time for filing a notice of appeal if the Rule 60 motion is filed no later than 10 days after judgment is entered.
Subdivision . The proposed amendment would make it clear that after the filing of the specified post trial motions, a notice of appeal should await disposition of the motion. See, e. Under the present rule, since docketing may not take place until the record is transmitted, premature filing is much less likely to involve waste effort.