"We therefore hold that whenever a notice of appeal is filed in a district court, it is filed as of the time it is actually received in the clerk's office even though it is designated as filed by the clerk's office at a later date. Da'Ville v. Wise, 470 F.2d 1364 (5th Cir.) (per curiam), cert. denied, 414 U.S. 818, 94 S.Ct. 40, 38 L.Ed.2d 50 (1973) . . . ."

In connection with the latter allegation, he notes that most of the papers mailed to the District Court were stamped as filed at 8:30 a.m. and suggests that the time of stamping may simply reflect a method of processing incoming papers wherein the papers received in the court's post office box are not collected and stamped until the start of the following working day. See generally In re Piper Aircraft Distribution System Antitrust Litigation, 551 F.2d 213, 216, n. 7 (CA8 1977) (leaving it open to party to prove that clerk received the notice of appeal on a date earlier than that recorded on it); Da'Ville v. Wise, 470 F.2d 1364, 1365, and n. 2 (CA5 1973) (refusing to hold notice untimely when the court clerk's practices created a strong possibility that the notice was not stamped when received). We thus conclude that the Court of Appeals had jurisdiction over petitioner's appeal because the notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.

And Lashley is plainly contradicted by a number of our earlier (as well as later) cases. Two years before Lashley, for example, this court correctly applied the time computation rules in Da'Ville v. Wise, 470 F.2d 1364 (5th Cir. 1973). There, the "district court entered judgment December 3, 1971," so "the 30-day appeal period . .

Otherwise jurisdiction might turn on such fortuities as whether the deputy clerk left for dinner a half hour early, or dashed off to the hospital because her child became ill.Cf. Da'Ville v. Wise, 470 F.2d 1364, 1365 (5th Cir. 1973) (treating a petition as received on time even though it was apparently not stamped until two days after it arrived at the deputy clerk's office).

None of the equitable variances mentioned in prior case law, involving circumstances completely beyond a party's control, apply in this case. See e.g., Da'Ville v. Wise, 470 F.2d 1364 (5th Cir. 1973). This court is without jurisdiction of this appeal.

This explanation gains credence from the fact that the envelope was mailed at least six days before the date of the first Winston-Salem postmark and contains an address addendum in the handwriting of an unidentified person presumably in the employ of either the court clerk's office or the post office. See, e.g. Da'Ville v. Wise, 470 F.2d 1364, 1365 (5th Cir.) (on facts similar to instant case, court held appellee failed to show notice of appeal untimely and reached merits), cert denied, 414 U.S. 818, 94 S.Ct. 170, 38 L.Ed.2d 50 (1973). We are not prepared to allow speculation on this issue to replace appropriate fact-finding, particularly when the consequences for the appellant are so final.

When appellant offers the district clerk's uncontroverted affidavit that she received the notice before the deadline expired, and the government has not demonstrated that notice was not received on that day, this court should not find that appellant's notice of appeal is untimely. Da'Ville v. Wise, 470 F.2d 1364, 1365 (5th Cir.), cert. denied, 414 U.S. 818, 94 S.Ct. 40, 38 L.Ed.2d 50 (1973); Ward v. Atlantic Coast Line Railroad, 265 F.2d 75, 79-80 (5th Cir. 1959), rev'd on other grounds, 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960). We, therefore, conclude that this court may properly exercise jurisdiction.

Under F.R.A.P. 4(a), the notice of appeal must be filed with the district court within 30 days of the entry of the judgment or order from which appeal is to be taken. Final judgment, in this case, was entered on May 12, 1977. The notice of appeal was received by the district court clerk on June 13, 1977, but not formally filed until June 28, 1977. Because an appellant has no control over delays between receipt and filing, a notice of appeal is timely filed if received by the district court within the applicable period specified in Rule 4. Parissi v. Telechron, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955); United States v. Solly, 545 F.2d 874, 876 (CA3 1976); Da'Ville v. Wise, 470 F.2d 1364, 1365 (CA5 1973), cert. denied, 414 U.S. 818, 94 S.Ct. 40, 38 L.Ed.2d 50. We hold that appellant satisfied the 30-day requirement for filing the notice of appeal. Consequently, we proceed to the merits.

Because an appellant has no control over delays between receipt and filing, a notice of appeal is timely filed if received by the district court within the applicable period specified in Rule 4. Parissi v. Telechron. 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955); United States v. Solly, 545 F.2d 874, 876 (CA3 1976); Da'Ville v. Wise, 470 F.2d 1364, 1365 (CA5 1973), cert. denied, 414 U.S. 818, 94 S.Ct. 40, 38 L.Ed.2d 50. We hold that appellant satisfied the 30-day requirement for filing the notice of appeal.

The date stamped on the notice by the clerk of the District Court, however, is not conclusive of the date of filing. See Da'Ville v. Wise, 470 F.2d 1364, 1365 (5th Cir.), cert. denied, 414 U.S. 818, 94 S.Ct. 40, 38 L.Ed.2d 50 (1973); Ward v. Atlantic Coast L. R.R. Co., 265 F.2d 75, 81 (5th Cir. 1959), rev'd on other grounds, 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960); Silverton v. Valley Transit Cement Co., 237 F.2d 143 (9th Cir. 1956). The operative act is the handing of the notice of appeal to the clerk of the District Court; it is open to an appellant to prove that this occurred on a date earlier than that recorded on the notice of appeal.