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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:94-cr-01012-MP-AK

ERIC KIMBLE,

Defendant.

_____________________________/

O R D E R

On May 19, 2010, this Court held a revocation hearing on two petitions alleging that Mr

Kimble violated the conditions of his supervised release in two cases, 1:94-CR-01012-MP

(Original Northern District of Florida case) and 1:10-CR-00012-MP (Northern District of

Georgia case transferred to the Northern District of Florida on March 22, 2010). At the hearing

held on May 19, 2010, Mr. Kimble challenged the first allegation in the petition: that he had

committed Kidnaping - False Imprisonment and Robbery with a Firearm. The United States

presented the testimony of two witnesses to establish Mr. Kimble committed the acts described

in Violation Number One of both petitions. The United States also presented documentary

evidence. The Defendant presented the testimony of one live witness, three witness affidavits,

and also presented documentary evidence. The victim of the offense, Christopher Ramirez, was

not called as a witness by the government. Instead, the victim's statements were told to the Court

by Detective Jeffrey Nordberg. At the close of the hearing, the Court found that defendant had

committed Violation Number One in the petition and imposed a sentence of 24 months. Doc.

128. Judgment was entered May 21, 2010. 

Defendant now files a motion asking the Court "to reconsider its findings and sentence
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Case No: 1:94-cr-01012-MP-AK

entered on May 19, 2010. Also, the motion asks the Court to "vacate its previous findings and

sentence and order a new revocation hearing at which the Government will be required to

produce the victim in this case, Christopher Ramirez." Doc. 138, p. 1 & p. 8. That motion is

currently under advisement.

In the meantime, the Defendant is uncertain as to the effect the motion to reconsider has

on the deadline for filing an appeal. Thus, not wanting to inadvertently allow the time for filing

an appeal to expire, the Defendant filed a motion to extend time to file an appeal, Doc. 141. 

Later, the Defendant filed the Notice of Appeal itself, Doc. 142. In order to clarify the timing

issues in this case, and to ensure that Defendant's rights are not threatened during the

consideration of the motion to reconsider, the Court holds as follows.

In U.S. v. Wilson, 307 Fed.Appx. 314 (11th Cir. 2009), the Eleventh Circuit explained

the effect of a defendant filing a notice of appeal while a previously filed motion for

reconsideration was pending:

The filing of a notice of appeal normally divests the district court of jurisdiction

over matters concerned in the appeal and transfers jurisdiction over those matters

to the court of appeals. Shewchun v. United States, 797 F.2d 941, 942 (11th

Cir.1986). The question this appeal presents, therefore, is whether Wilson's filing

of the motion for reconsideration on April 14 gave the district court the authority

to entertain the motion notwithstanding Wilson's subsequent filing of the notice of

appeal.

A defendant in a criminal case must file a notice of appeal within 10 days of the

entry of judgment. Fed.R.App.P. 4(b)(1)(A). However, if a defendant timely files

one of the tolling motions listed under Rule 4(b)(3), then the notice of appeal is

not effective until the date of the entry of the order disposing of the tolling

motion, or until the date of the entry of the judgment of conviction, whichever is

later. Fed.R.App.P. 4(b)(3)(B). The three tolling motions listed in Rule 4(b)(3)(C)

include a motion for judgment of acquittal, a motion for new trial, and a motion

for arrest of judgment. Fed.R.App.P. 4(b)(3)(A). Moreover, “[a] valid notice of

appeal is effective-without amendment-to appeal from an order disposing of any

of the motions referred to in Rule 4(b)(3)(A).” Fed.R.App.P. 4(b)(3)(C).
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Case No: 1:94-cr-01012-MP-AK

The Federal Rules of Criminal Procedure do not expressly authorize the filing of a

motion to reconsider an order by the district court. Nonetheless, “the timely filing

of such a motion in a criminal action tolls the time for filing a notice of appeal

and the time begins to run anew following disposition of the motion.” United

States v. Vicaria, 963 F.2d 1412, 1413-14 (11th Cir.1992) (citing United States v.

Dieter, 429 U.S. 6, 8-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976)). In this case, the

motion for reconsideration was timely since it was filed within the period of time

allotted for appealing the March 31 order. Vicaria, 963 F.2d at 1414. Hence, the

April 16 notice of appeal did not transfer jurisdiction to this court, i.e., it did not

oust the district court of jurisdiction, until the district court entered its June 23

order denying Wilson's motion for reconsideration.

Wilson, 307 Fed.Appx. at 315. Thus, under the cases discussed above, the Court concludes that

the filing of the notice of appeal does not deprive the undersigned of jurisdiction. Also, the

filing of the motion for reconsideration tolls the time for filing an appeal, even though it is not

specifically listed in Fed. R. App. P. 4. As a result, even without an order of the Court the

defendant would have ten days after the entry of the order finally resolving the motion to

reconsider in which to file his appeal. 

In an abundance of caution, however, the Court will take the extra step of explicitly

granting the motion for extension of time. Thus, because of the law stated above, it is hereby

ORDERED AND ADJUDGED:

The undersigned finds that good cause exists under Fed. R. App. P. 4(b)(4) to

extend the time for filing an appeal until Monday, June 21, 2010, which is within

the 30 days permitted by Fed. R. App. P. 4(b)(4). The motion to reconsider will

be resolved in a separate order.

DONE AND ORDERED this 9th day of June, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge