we'll hear argument next in case fifteen seventy two fifty mainly rec'd versus united states thank you mr chief justice and may it please the court a single notice of appeal perfects a criminal the appeal of a criminal judgment and sentence even if a part of that sentence is deferred it doesn't matter whether the appeal is first noticed at the completion after restitution is decided or if the appeal is noticed at the outset after the initial sentencing hearing in either event that single notice of appeal  issues that arise within that judgment and sentence when it is fully completed we know this in part because of the court's decision in dolan indulged in the court struggled with the mechanics how was the court and going to evaluate the mandatory victim and restitution act what does it require a district court to do and after struggling through those mechanics the court said that essentially the second document fills in an amount related belying in the original judgment that made clear that restitution was applicable it is clear that what happens second the restitution part is nothing more than a completion of the original judgment and sentence it is not a new judgment it is not a new sentence it is simply a completion of fill in the blanks as the court has phrased it we know not only from dolan that this should be the case but we know it also by looking at the criminal appellate rules as they relate to criminal cases if we go down one by one each of the sections of four big each section leads to a single conclusion only one notice of appeal is paid in order that has it been made that's correct yet it's not entirely correct three c says designate the judgment under review which we've done here it was the initial judgment the june twenty fourth judgement and that is the one and only that's under review at the time that it was entered it was interim or incomplete provisional something that the court has seen previously in cases like cory and first year mortgage judgments that were not completely filled out by the time the notice of appeal was filed but we are only appealing the june twenty fourth judgment as it was eventually completed by the later restitution proceeding we argue and i think the rules and dolan make clear that there is but one notice of appeal there is but one judgment in these cases and it only has to be noticed the one time if we look at the balance of how do you answer that difference between one judgment tha they're meant to charge are you suggesting you don't have to appeal from an amended judgment that's correct in the case of the deferred restitution the court made clear that there was not an additional judgment occurring in amended judgment original an additional judgment again to use the court's words the second document if you will is filling in the blanks of a judgment that was previously entered leaving clear that those blanks were yet to be filled in i for the following reason you're on as we indicated of the outset there are two times to appeal and this has been recognized by the courts below as well there are two times that the defendant may appeal he may either appeal at the outset right after sentencing actually the more logical time to do it would be at the conclusion of the case there have been exceptions where defendants have wanted their appeals are going the outset right after sentencing yes your ok right after sentencing or again after restitution so that option t to appeal after the restitution is completed is always available it remains available if the initial appeal has ended if there never was an initial appeal there is always an opportunity to appeal again the fourteen days commence with the original sentence and again a window opens after the restitution is completed so there are in fact two fourteen day windows for the filing of a notice of appeal and that's not something we as i hear you now you're saying something different from what i understood your brief to be saying so maybe i just i understood your grief to be principally arguing that this was a consequence of rule for be two and so far i haven't heard you mention  for be too instead what you seem to be saying is that regardless of rule for b two we should treat the initial judgment and the later judgment as though they are the same judgement and and for b to doesn't have to exist for that argument to be to be correct i'm not saying that argument is correct but but it's a different argument than the argument i understood you to be making in your brief so what are you making i'm really making both i'm not saying for b two is not part of this equation i began to say that earlier when i started to go down the parts of rule four big that i think clearly show that we're dealing with a single judgment here for b two is very very helpful to us because it incorporates the court's decision in lemke from one nine hundred fifty three in which the court really looked at the question of what does in premature notice of appeal really mean if anything and how much significance does it have any a theme that the court that taste lengthy became rule four b to and the court revisited this in first year mortgage when it said there is a between something that's tardy and something that's early and th of one is not the same of the other in the case of something that's tardy we're talking about failure to allow a judgment to become final as it should once the time expires for appeal and that's why the court is very very concerned with something that started out as in the first tier mortgage and originally in lemke there was a recognition that the file something too early that's just a technical violation in your view if you  have order entry of a conviction they found your verdict fixing sentence order of restitution amount to be determined within sixty days and you wait sixty days to appeal everything or much to file the first notice of appeal within fourteen days as to the sentencing order of conviction no i think you certainly i believe that net was the natural progression you waited until the completion of the judgement  you can now wait until the order restitution before you appeal the sentence in the order of conviction you can't you can wait until restitution is completed to do that do you understand the government to take that same position i can ask the government but i'm not sure that we're going we've actually briefed in that very way i think that it before most of the circuits actually handled it that way in the eleventh circuit from where this case arises that was precisely the process the eleventh circuit would hold the notice of appeal in a benz would not let it go forward until the restitution judgment was completed no sir no no no i asked but that's but that's when a notice of appeal was timely filed i'm my question is can note that the judgment is completed and that window is always naturally open way judgment is complete it will take conceptually at least that seems odd in other words you're saying you can appeal what looks like a non final judgment it's got a big blank in it right and you say you can appeal that even though it's not complete and then later on you can appeal either the part that fills it in or the whole thing but it seems to me that usually if things are very they're final or not and if they're not you can't appeal and if they are you can although it may seem like that conceptually that's precisely what the court confronted in corrie or size lee what the court looked at in court corey that was a provisional sentence that was to be completed with the actual sentencing hearing much later down the road up to six months down the road then the time the initial of here would have been allowed that didn't make make the judgment final at the time of appeal it made it final enough because it was  rules you know final enough you know and then you get on their cases and they fight like this one is this final enough for not it just seems to me that we would be better served by the simple rule of even the rule where if you can do two different things that means the court of appeals have to deal with two different things they get a notice of appeal from the original judgment and they don't know if they don't necessarily know if there's going to be anything more right the restitution may be in significant enough that you don't feel it's worth adding arguing in their briefs no no i know it's here while here the question is whether you're going to are and anything at all i mean obviously if the restitution amount hasn't been entered you can't challenge the amount but they don't know in the court of appeals what is you going to file another notice of appeal i guess we have to hold this in abeyance and then you hold it in abeyance and who knows for how long because it doesn't actually have to be within the ninety days it just seems to me a very confusing system as a practical matter has not been confusing at all to the courts of appeal which have been struggling who have been struggling with this both before going in after we've had an a fight in our brief seventeen post dolan appeals and the government has identified another fifteen post on appeals in every single one of those cases some of which took five and a half years for the rest of to sion to be resolved three and a half years two and a half years many cases go by where they are resolved within the ninety day limit and and they're not  decision but it waited here white is wait here because it does way and that's been the tradition in the eleventh circuit but i look at this judgement they look at the judgment they record to the court and the parties all know that there's a restitution matter outstanding and it's held in a the eleventh circuit as every other circuit has awaited the outcome of the restitution orders the restitution answer before it goes forward to decide the appeal in all of the cases that were identified in the petitioners brief and for that matter in the government's brief that's thirty two cases i think there may be some duplicate there post all in cases a single panel of a single court of appeals captured all of the issues that were to be heard in one case they were not concerned or troubled by any anything that was scott outstanding the reason for that really was predicted by the solicitor general's brief in dolan itself it said that in most cases we can expect that the court will resolve it either at sentencing or within ninety days and that most appeals back then would take twelve months now they take to one point six months that's plenty of time for the record to be raised new transcript of the restitution hearing to be prepared as it was in this case and for the parties  be able to fully brief little if not so sure you're adding at least ninety days under your rules and in the meantime if there is to be a new trial we have problems with the witnesses being unavailable or the defendant often in custody during this time three months is not insubstantial it is not insubstantial but it is it is three months seven point six months shorter than the average appeal i don't believe that there's anything about necessarily the ninety day limit but sometime within that time that time is it if i'm using an appropriate phrase dead time in an appeal anyway it's when the briefs are being it's when the transcripts are being ordered and the transcripts are being prepared it is not time when the parties are yet briefing th case the first time under the federal rules of appellate procedure that a brief is due in most cases on the ninety eight day over three months after the notice of after the judgment is originally entered that's three months in the average case that's if a court reporter does not ask for an extension of time to prepare the transcript that's if the parties don't need an additional time that's if the court clerk can prepare the record the day the last transcript arrives which i think is a rarity to count so you've been talking about how it works where you think it should work but not any sort of statutory reasons you rely heavily on for be too but it doesn't even seem to apply by its terms it says notice of appeal filed after the court announces a decision since order book before the entry of judgment and that would not seem to apply to a situation where here this wasn't before the entry of judgment of the appeal of the restitution part it was was after that is our argument that it is the words the judgment in four b two are not the in the interim judgment it speaking in terms is the court and rules normally due to the completed final judgment and it is not completed until the restitution amount fills in the blanks of the original interim judgment argument is that it applies for personally that reason because it is making reference to the completed judgment well but so you're saying the rule doesn't apply to what i understood to be the typical situation when it applies it doesn't announce is a decision filed in the notice of appeal and then they get around to entering it in a couple of days it does apply it applies in this setting as the judge did in this case he announces because that he must by law and under the dolan formulation he asked that he says restitution is mandatory under the mandatory victim restitution act of one thousand nine hundred six i can ascertain the amount of damages currently so i'm going to postpone hearing on that in this case he postponed for sixty days ultimately decided just under the ninety so he hasn't entered a judgment with respect to the amount of restitution that's correct the judgment he has entered is as to the conviction as to the other aspects of sentence which are file but he has not yet entered a judgment but he also has and he also has announced a decision in this rule applies to a notice of appeal filed after the court announces a decision he has respect to the subsequent order that nothing about the amount has been announced yet he has announced it in the same way for example that the announcement was made in cory barron's and first here if i may explain when he says restitution is mandatory that's like the judge saying in a in a bench statement in first your mortgage i'm going to grant summary judgment he doesn't explain any findings of fact or any findings of law without which you can't even have an appeal you wouldn't be able to have an appeal without those details when he says i'm going to grant summary judgment than nothing more that's exactly like saying i'm going to grant mandatory restitution it's required by statute in first no no amount of restitution has been determined the details of the amount have not been fleshed out but the order is given that there shall be mandatory restitution but there might not be an  event i think that's correct but that's always correct that no one knows for sure what issues will be raised by the appellant until the brief is written did i understand you mr rushton to say earlier that you think you would have an argument even if forty two didn't exist in other words and then the way to say this is suppose we think that forty two deals with a different situation from the situation that you're into and about do you still have an argument or is it dependent on for me to yes we do what's what's the argument that's exclusive for the two the argument boils down to this in reading for the there is not a single instance under the federal rules regarding criminal appeals in which to notice of appeal are required in a single appeal every single time the rules drafters and counted the possibility that to notice of appeal might be required they immediately rewrote the rules to avoid that possibility part of that is for b to part of that is further down the road part of that is for b five where there is a thirty rule thirty five a correction of a sentence at every turn the drafters of the rules have made it clear that one notice of appeal is all that is required as to the one judgment and sentence in a criminal case well in it but it's an address specific instances as you say which the issue may come up but it hasn't addressed your situation it has been so like i mean this is one of those arguments you say whenever they see it they provide for it but they haven't seen it yet at least with respect to the drafting of the rule part and maybe it doesn't apply in that situation part of that i think is a matter of timing it is only happened since two thousand and ten that the court interpreted the statute to have the mechanics we speak of today therefore that time the circuits were split as to how they were handling it so for it it wasn't necessary to say more for example in the eleventh circuit court with that might be true but still and we need to wait until congress fixes it well be the only remedy congress has problems congress fixes problems and and you might be right that this is the kind of problem that congress has fixed in the past but that by itself doesn't seem to give us the ability to go fix it ahead of the time that they do if i may suggest why i think it was i think it would not be congress so much as the rules drafters the court would recommend these rules and then with congress approval or disapproval and here is why i think the drafters have not gone because in black and white in the court's decision in dollar and acknowledge that these kinds of arise and that the court would need to address them and perhaps they felt it would be presumptuous of the court says we see these kinds of problems going who are going to arise and will address them and instead the rules drafters pre term it at those decisions coming up with their own answers to those questions so what's the legal principle that gives us the authority to create this exception let's assume we agree with you that the rules don't cover this particular situation let's assume further we don't buy the government's argument that notices of appeal or jurisdiction and you can get into that when you're ready but so let's just deal with it's not jurisdictional gives us the power to do this the power is in the rules the court decided decades ago that the rules would tell lawyers how to proceed in litigation the rules are to be clear when for example one of the rules on the civil side made it possible for a lawyer to make a mistake by not filing a second notice of appeal something that what recognized in its gregg's decision the rules drafters went right back and immediately changed that rule and said in their commentary it was dying designed to eliminate the trap for the unwary that the previous rule created the rules are designed so that there is a fair administration of justice without great cost and delay without confusion these rules say that you must notice an appeal from a final judgment that was done in this case in fact the final judgment in this case in all cases like it has this anomaly the notice of appeal is at the same time timely and partially on time it's not a notice of appeal filed at a time when the court of appeals would say that's so worley we need to dismiss we need we have no jurisdiction because it's on question that the court of appeals had jurisdiction over the conviction and all aspects of the sentence incarceration term of supervised release that it had on the same day that the notice of appeal was filed and in the anomaly it perhaps didn't have jurisdiction or it was early to have an order is in place and everything will be fine i think a fair answer to that is of course the court could have such a process i would urge against it and it's certainly one that is not in place present time is not one that governs the proceedings that occurred here and never occurred but there are other jurisdictions that actually required well there are there's one that requires it there's one that's so unsure about the answer it it has both accepted a single notice of appeal and yet recommended that say for courses to file two there is one jurisdiction that has repeatedly just held over and two jurors to consider it held over and over under rule for b to that the original notice of appeal matures and those cases don't go into the kind of thought that we have here and both justice sort of i was question was why the virtue of having two notices of appeal it's definite for a certain time people know what to do when you have one notice of appeal and then maybe you're going to add a few arguments later did you are you did you did they have a fair chance to answer what is that later time it is raises a lot of questions so the simplest thing with a rule and it doesn't hurt anybody is but i think she was suggesting is just follow what the government says there you peel and you appeal i think my answer to that is although that may be intuitive y rules don't require lawyers to use their intuition for all they really want to say or to follow them if you're just being literal in the rule the rule says in a criminal case a defendant's notice of appeal must be filed within fourteen days of the order being appeal from that's one of the things and you're appealing from the order would says pay so much and in this case it would be from the judgment because there really are no appeals of right by a defendant from an order for had or from the judgments about the judgment which says judgment open and then we have another judgment which is how much the amount is i mean that's so simple and all the lawyers would understand it and the other seems more complicated now what your response to my response is that stat is not the mechanical formulation that the court provided indulge it wrestle but with that the majority and go in didn't answer the wrestle with i know whether it answer the question but in one second i'm going to conclude that you don't have a reason other than i would read the text your reason is that the text really requires doesn't require that it doesn't but you have any answer other than that it would be the first time in which two notice of appeal are required in the first a criminal case and that by itself confuses the process of what the appeals are trying to accomplish the appeals are trying to make the rules are trying to make it possible for lawyers to know what to do and when they are clear as to the criminal side that there screwed him mr chief justice and may it please the court a criminal defendant may appeal in a word of restitution by filing a notice of appeal after the amount is determined and entered against him in the form of a criminal judgment  to applies to a notice of appeal that's filed after the announcement of a sentence but before entry of the judgment memorializing the sentence it does not apply whereas here the notice of appeal is filed long before the court even decides the  what is your position on whether the was aware of their opportunity to appeal there's been no suggestion here by petitioner that the litigation or his attorney were unaware of the opportunity in mr ashton's reply brief  he represents that there was no awareness of the opportunity to appeal i mean the only thing that gives you pause in a case like this is just because usually you only have to file one notice of appeal you do get worried about you know traps for the a person who just won't understand that there is another stage in this process and needs to file a notice of appeal as long as the court is fulfilling its obligation of saying ok now you know you if you have an objection to this you need to file another notice of appeal well that solves the problem but if the court doesn't say it it doesn't solve the problem and apparently that's what happened in this case and mr rash and represents that his client didn't know of his  opportunity to or his need to appeal well with respect to this petitioner i think that that's true once the court makes unmistakably clear that a second notice of appeal is required i don't think this is the sort of thing that's likely to criminal fifty two whether you're talking about harmless errors or talking about a rule thirty two error i see rule thirty two errors are dealt with in the manner that was discussed in programmer and so if there was  error of that sort here then the proper remedy assuming ones available would be to file a twenty to fifty five petition assuming that those apply to restitution orders other than making a supreme court case of this issue given the practices in the eleventh circuit where the court order that it only appears to wait for the rest to sion transcript and for these issues to be litigated one is i'm not going to talk about whether that's efficient or not they've chosen it to be efficient and virtually in every other case you've never raised an objection why did you raise an objection here what what was the purpose of doing this was it to make a test case not to my knowledge i think the general principle that you can't appeal a decision that hasn't yet been met is a pretty standard principle in the law generally not just in criminal cases and a search i can't bridge situation he's absolutely right most criminal appeals it's one criminal appeal from the final judgment it doesn't appear as if this time in this fourteen so before the restitution hearing but not much much before it that a criminal defendant in petitioner situation had two options they could either file a notice of appeal after the initial sentencing and then a second notice of appeal after restitution was ordered or they could wait until the end and file one notice of appeal after restitution and so that decision came down in july of two thousand and fourteen and we cannot verify or dispute the representations that petitioner has made that in circuits courts always wait but justice kennedy i think you identified a very troubling implication of petitioners argument namely that it would prevent in many cases criminal defendants from getting an  appeal from their conviction and their terms of imprisonment because if petitioner is correct about a power rule for b two it means that the notice of appeal that he filed wouldn't take a fact it wouldn't become effective until after restitution was ordered which means that the appellate process really shouldn't begin until that point which is especially troubling for criminal defendants who normally want to get their appeals up and going as soon as possible either and in the rules themselves or in the colloquy that takes place in the criminal system is the restitution part of the sentence restitution is certainly part of the sentence so th rule thirty to be that justice is applicable there has to be there has to be advice for the right to appeal that's correct what many district courts do is they have sentencing scripts which they read at the end of a sentencing and there's no reason that they couldn't for instance at the end of the script that they use for a restitution hearing make sure that they advise a criminal defendant that they have a right to separately appeal restitution why would you i think you answer appeal and there's a proper procedure that you have to go through and the type of prejudice that you're talking about has to depend in part on the state of knowledge of the criminal defendant and his attorney but if i could more directly lead so i'm i'm not sure it actually was alleged i don't see any place in petitioners brief where they represent that they didn't know they had a right to appeal and with respect to their argument that they didn't know they had to file a second notice of appeal that was inconsistent with  that the judgment had been amended to include restitution there's certainly some amount of formalism but let me explain why i don't think that it's just formalism the general principle that you can't appeal a decision that hasn't been made i think makes sense and is not only consistent with the rules but also with the the way things normally work in litigation and let me give you three examples of cases in which you actually would need a second notice of appeal in a criminal case the first is a motion under rule thirty five a of the criminal rules to correct a sentence if you file your notice of appeal before making a rule thirty five a motion the courts of appeals generally require second notice of appeal if what you want to challenge is the resolution of the rule thirty five a motion similarly rule thirty five b allows a court to based on the substantial cooperation of a criminal defendant alter the sentence if the sentence is altered and the defendant wants to challenge that out then the defendant has to file a second notice of appeal and the third example relates specifically to restitution because under the mandatory victim restitution act you can actually end up with several different restitution awards and therefore several different judgments and that's because criminal victims of criminal offenses have sixty days to bring up new losses which they can raise to the court's attention at any time and if they do the court has to award and decide whether there's a new or ward of restitution it's not clear how petitioners approach either to rule for  a court with respect to unless my hypothetical sure i understand i think that if you're talking about things that were understood to be part of the original sentencing you can wait until that's complete and f appeal but if you're talking about completely new losses there is no reason why the original notice of appeal should suffice to challenge a decision that hasn't yet been made and keep in mind the nature of petitioners challenge here which is not to the fact of restitution which he acknowledges was nan dettori under the statute he objected to the amount of restitution and specifically to the sufficiency of the evidence that the government put forward at the hearing to justify the forty five hundred dollars that was awarded and restitution and there is simply no way that petitioner at the time he filed his notice of appeal could have had any idea about the basis for that issue here strikes me is somewhat similar to the issue that arises in the civil context with respect to attorney's fees you have a judgment and you're entitled to attorney's fees because you won but of course they don't know what those are yet in they have a hearing down the road what is the rule there  appeal to notices of appeal the rule there is you have to file a second notice of appeal and i'd point you to a case called the re holic gravel that's a good example where you might have a judgement for the defendants on summary judgment and then a notice of appeal and at the time it grants summary judgment the district court says i'm going to determine at a later time the appropriate amount of attorney's fees you cannot on the basis of the first notice of appeal challenge the amount of attorney's fees you have to file a second notice of appeal we also think that in the civil context and i write that sometimes you file a second notice of appeal but you're the rules really if he is that's correct but not here i mean it's a little bit odd th text fees would be weird for this at the notice of appeal and here and in the criminal context not well fees would not be raised would not be waived in the specific scenario that the chief justice posited there only for certain very limited scenarios in which it would be wa but if you're talking about a scenario like this one but a criminal defendant who unlike petitioner was not indigent i don't see any reason why the defendant wouldn't be able to file an amended notice of appeal and many circuits don't require an additional fee and if the feel issue is something that the court is concerned about that is the sort of thing that it would be appropriate for the rules committee to address with the recognizing that you could  as an amended notice of appeal so it's one notice of appeal but better amended i think you would have to take a step to amend the notice of appeal because justice ginsburg as you yourself pointed out appellate rule c one b requires the notice of appeal to identify the judgment being appealed and if you want to see the notice of appeal that petitioner filed i would direct you to page forty two of the joint appendix where he states very specifically that he is seeking appeal quote from the final judgment and sentence entered in this action on the twenty fourth day of june two thousand and fourteen so then he seeking review of the judgment  not include restitution counsel the progress of the case i read you read that as saying that if there is prejudice to the defendant who wasn't advised of his right to appeal that defendant is entitle to collateral relief i do read it that way and i suppose the collateral relief is what reopening the the case that he can file a notice of appeal i think in that case if you're talking about a case that's cognizable on twenty to fifty five i think the remedy could be re entry of the judgment to give him another opportunity to file his notice of appeal if i could briefly return just to the rule for b argument because i think the text of that rule explains why it is that it doesn't apply to this case for b to refers to entry announcement of a sentence followed by entry of the  judgement which i think makes clear that you're talking about precisely the same judgement that was just announced and that's a pretty familiar pattern in criminal cases where sentences get announced and then they get entered into the docket it's sort of like opening and closing a pair of parentheses and usually that happens within a few days of one another if not a few hours and so when you're talking about rule four b two you're really talking about the notice of appeal that would have been filed for instance after september seventeenth hearing at which a forty five hundred dollar award of restitution was announced but before it was entered into the docket the next day but that's obviously not what we're dealing with here why couldn't you treat  i think that would be inconsistent with a few existing appellate rules of procedure and i think you could change the rules perhaps to deal with that situation but it would be a fairly radical change in the way that notices of appeal and jurisdiction normally work because normally we think of a notice of appeal as transferring to the court of appeals jurisdiction over all of the elements contained in the judgment that was identified and instead you would be transferring on a prospective basis decisions that had yet to be made and i think it would also for the reasons that the chief justice identified the four court of appeals very confusing because remember that in many cases criminal defendants have a strong incentive to get their appeal up and going as soon as possible that's especially true if you're a criminal defendant who's got a short prison term or you want to be let out on bail pending appeal you said not going to get the fruits right jurisdiction over all of the elements of the appeal or something like that that's right contained in the judgment that you have appealed right but i thought the basic was your friend is emphasized this in his briefs that you get the case you don't get different elements that may have been adjudicated or whatever if you're filing you peel whole case goes i'm sure i don't think that that's accurate the only authority he can point to for that proposition is the corey decision but that actually was a very different scenario that i think actually supports the government in corrie you were dealing with a statute in which a district court was authorizes to impose a provisional sentence to the statutory maximum and then within six months it could revisit that sentence and reduce the sentence based on new information and the question in corrie was whether the criminal defendant who filed a notice of appeal only after that later reduced sentence had waited too long to challenge his conviction it wasn't a challenge to the sentence or anything that happened at the second sentencing instead it was a challenge to the conviction and what this court said is no both the original sent the original sentence to the statutory maximum and the later sentence were sufficiently final that they can be appealed which is consistent with what this court has said in dolan and the government agrees which is that you can file a notice of appeal appeal either from your initial sentence or from your later sentence or you can wait until the very end and file one notice of appeal at the very end that will allow you to challenge all elements of your sentence including your conviction if there are no further questions about this mystery yet where were you going i was going to rule fifty two but i'm happy to maybe this will be a good segue this this this you understand the requirement of a notice of appeal to be jurisdictional do you understand the requirement of timeliness to be jurisdictional or not not in the criminal context ok now requirements as to what counts as a notice of appeal in other words suppose i'm a defendant and i miss my fourteen days i don't file a notice of appeal within that time actually i don't file it later i file a brief just a brief count as a notice of appeal yes a brief in certain situations has been deemed to count as a notice of a concert in situations well in the case there is a specific supreme court case the name of which escapes me at the moment but the court dealt the government doesn't say anything about it the appeal goes forward that's correct i would also point out that there is a rule that also allows district courts and this is appellate rule for before to extend by thirty days the deadline for filing a notice of appeal so long as you can show reasonable reasonable diligence or good cause and i think a good cause might be shown by the council's ineffective assistance that would be another way to deal with the same thing turning now perhaps to appellate rule to rule fifty two the types of errors that are cognizable as i said earlier are errors in the district court's proceedings they are not a party home and fifty q well i'm not sure that the relief that petitioner is asking for here is a correction for that error i think the court has already conceived of a different consistently that a party's failure to comply with such a rule so long as it's invoked by the other side at the appropriate time means that dismissal of the claim is mandatory you don't have a separate inquiry into prejudice there are a number of federal rules that include time limits and if a party's failure to comply with one of those time limits could be excused absent prejudice to the other side then i think those time limits would no longer be mandatory and in a meaningful appellants failure to take any stop other than the timely filing of a notice of appeal does not affect the validity of the appeal which again suggests if you don't have a proper notice of appeal you don't have a valid appeal makes the statement it does is because in the civil context the timeliness the temporal limits on a notice of appeal are jurisdictional and so three a two which captures both civil and criminal appeals would need to say that it does not say though that in a criminal case those same issues apply in exactly the same way it is perceptive to note that the district court failed to comply with rule thirty two general because that advice was public right you purse well i disagree that that's what happened the movie ok did not involve the defendant who was appealing restitution and the battle in the movies iau case which was issued about the same time as the hearing in this case the majority judge judge wilson and the concurring judge judge kobler both said we are absolutely not going to decide whether that notice of appeal could have captured the earlier the restitution and the other because restitution is not at issue so a discussion in footnote nine of a case that is not on point at all and does not become final circ was not denied in that case until after the restitution hearing and judgment in this case and rehearing was denied by this court in the next year i submit that a decision that isn't fine that isn't on point and makes it referenced by a footnote is not telling the lawyers how to proceed on an appeal with his point of the rules are don't think it's fair to say that lawyers were on notice that's why i come back to the court and say that even the court shouldn't be deciding this in an opinion it belongs in the rules lawyers are entitled to pick up a book of rules and determine how they should proceed and what has been clear in these rules from the beginning as to criminal cases one notice of appeal is all that is required where congress legislates in a way that creates this sort of anomaly where there might be two windows to appeal it shouldn't change the underlying rules they are that if you file a notice of appeal as to a time which is timely as to part of the sentence and judgment that it remains timely