NATHAN BEAN, PETITIONER-APPELLANT,
v.
LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, STATE OF FLORIDA, RESPONDENT-APPELLEE
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The court held that the appeal was untimely filed, divesting the district court of jurisdiction to issue a certificate of probable cause.
The district court denied the appellant's petition for a writ of habeas corpus and denied a motion for rehearing. The appellant filed a document const…
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PER CURIAM:
This appeal is from the district court’s denial of the appellant’s petition for a writ of habeas corpus. We dismiss the appeal as having been untimely instituted.
By order filed April 22, 1970, the district court denied habeas relief; and on May 25, 1970, the appellant’s motion for rehearing was similarly denied. The record before this Court discloses that the court below received no notice of appeal or any document which might reasonably be construed as such until the July 29, 1970 receipt of the appellant’s motion for a certificate of probable cause, which was granted on August 12, 1970.
Since the appellant did not manifest his desire to appeal until sixty-four days after the denial of his motion for rehearing, four days beyond the maximum extended time period provided in Rule 4 (a), F.R.A.P., the district court lacked jurisdiction to issue a certificate of probable cause. Thus this Court has no jurisdiction over the appeal. Lawrence v. Wainwright, 5th Cir. 1969, 419 F. 2d 1326, cert, denied 1970, 397 U.S. 1029, 90 S.Ct. 1281, 25 L.Ed.2d 542; Allen v. Wainwright, 5th Cir. 1967, 384 F. 2d 745.
Appeal dismissed.
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Hardy Jackson v. Sheriff Bill Decker, 451 F.2d 348 (5th Cir. 1971)
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Tribbitt v. Louie L. Wainwright, 462 F.2d 600 (5th Cir. 1972)
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Dunn v. Henderson, 446 F.2d 1398 (5th Cir. 1971)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Veenkant v. Commissioner of Internal Revenue, 397 U.S. 1029 (U.S. 1970)
- Heman Lee Allen v. Louie L. Wainwright, 384 F.2d 745 (5th Cir. 1967)
- Lawrence v. Louie L. Wainwright, 419 F.2d 1326 (5th Cir. 1969)