David Lawrence, Appellant, v. Louie L. Wainwright, Director, Division of Corrections, State of Florida, Appellee, 401 F.2d 177 (5th Cir. 1968)

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U.S. Court of Appeals for the Fifth Circuit - 401 F.2d 177 (5th Cir. 1968) September 25, 1968

David Lawrence, pro se.

Arden M. Siegendorf, Asst. Atty. Gen., Miami, Fla., for appellee.

Before COLEMAN, GOLDBERG, and GODBOLD, Circuit Judges.


The appellant moves for appointment of counsel to represent him on this appeal. Appellee moves to dismiss the appeal as not timely filed.

Previously this court granted a certificate of probable cause and leave to appeal in forma pauperis although the application for certificate of probable cause was filed in the district court more than 60 days after the date of the order denying writ of habeas corpus. It is now made known to the court by the motion to dismiss the appeal that no notice of appeal was filed until more than 60 days after denial by the district court of writ of habeas corpus.

In pro se cases we have been liberal in accepting informal documents as notice of appeal. But this policy does not override the requirement that notice of appeal must be filed within 30 days, which may be extended by the district court for a period not to exceed an additional 30 days upon showing of excusable neglect. Rule 4, Fed.R.App.Proc. In this case no order was entered extending the 30 day period to 60, the appellant made no application for such an order, and in any event nothing which could serve as notice of appeal was filed until, at the minimum, 63 days. This court has no jurisdiction of the appeal. Allen v. Wainwright, 384 F.2d 745 (5th Cir. 1967); Kapsalis v. Wilson, 380 F.2d 365 (9th Cir.) cert. denied Kapsalis v. Nelson, 389 U.S. 878, 88 S. Ct. 180, 19 L. Ed. 2d 168 (1967).

The appeal is dismissed.

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