Summary
instructing district court to provide thirty day period to the prisoner to explain excusable neglect
Summary of this case from U.S. v. CosbyOpinion
No. 77-1787. Summary Calendar.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
March 1, 1978.
George M. Strickler, Jr., New Orleans, La., for defendant-appellant.
Robert E. Hauberg, U.S. Atty., James B. Tucker, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges.
Dennis Paul Shillingford was convicted and sentenced on state and federal charges arising out of a shoot-out in Jackson, Mississippi, between state and federal officers and black "citizens" of the Republic of New Africa. Shillingford's federal conviction was affirmed by this court and his petition for certiorari was denied by the Supreme Court. United States v. James, 528 F.2d 999 (5th Cir.), cert. denied sub nom. Shillingford v. United States, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976).
In November, 1976, Shillingford filed a motion for reduction of sentence under Fed.R.Crim.P. 35. The district court, after conducting a hearing, denied the motion on January 21, 1977. The denial order was filed in the record on January 24, 1977. The ten day period in which to file an appeal in a criminal proceeding, as prescribed by Fed.R.App.P. 4(b), ended on February 3, 1977; notice of appeal was not filed until February 22, 1977.
When a notice of appeal is untimely, this court is without jurisdiction. United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960). Rule 4(b) does, however, provide that upon a showing of excusable neglect, the district court may extend the period for filing the notice of appeal for an additional thirty days. Since Shillingford's notice of appeal was filed within thirty days of February 3, 1977, and in the interest of justice, we remand this case to the district court. United States v. Umfress, 562 F.2d 359 (5th Cir. 1977). The district court is directed to allow Shillingford thirty days in which to move for a determination whether excusable neglect entitles him to an extension of time to appeal. If the district court does grant the extension of time and this appeal is thereby perfected, no further briefing will be required. United States v. Umfress, 562 F.2d at 360.
REMANDED.