UNITED STATES v. REYES (2018)

Samuel Reyes, proceeding pro se, appeals the denial of his motion to eliminate or modify his term of probation and the denial of his motion for reconsideration. The government argues that his appeal should be dismissed because his motion for reconsideration and notice of appeal were both untimely. We agree with the government.

We decide de novo whether an appeal should be dismissed as untimely. United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). In a criminal case, a defendant must file a motion for reconsideration or notice of appeal within 14 days after the district court enters the judgment or order being appealed. Fed. R. App. P. 4(b)(1)(A)(i); United States v. Vicaria, 963 F.2d 1412, 1414 (11th Cir. 1992). A timely filed motion for reconsideration tolls the period for filing a notice of appeal, so that “the time begins to run anew following disposition of the motion.” Id. at 1413–14.

The district court denied Reyes’ motion to eliminate or modify his term of probation on January 9, 2017. Reyes had 14 days, until January 23, to file a motion for reconsideration or notice of appeal. But he did not file his motion for reconsideration until February 7. And he did not file his notice of appeal until March 8. Because Reyes did not timely file his motion for reconsideration, that motion did not toll the period for filing a notice of appeal. And even if the deadline had been tolled, Reyes’ notice of appeal would have still been untimely because he filed it 28 days after the court denied the motion for reconsideration. Because Reyes failed to timely file both his motion for reconsideration and his notice of appeal, his appeal is DISMISSED.

PER CURIAM: