UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DENNIS PAUL SHILLINGFORD, DEFENDANT-APPELLANT
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The court held that an untimely notice of appeal may be permitted if the district court finds excusable neglect.
The defendant filed a motion for reduction of sentence, which was denied by the district court. His notice of appeal was filed beyond the ten-day peri…
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PER CURIAM:
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.
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United States v. Ward, 696 F.2d 1315 (11th Cir. 1983)
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United States v. Rothseiden, 680 F.2d 96 (11th Cir. 1982)
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United States v. Shillingford, 586 F.2d 372 (5th Cir. 1978)
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- United States v. Robinson, 361 U.S. 220 (U.S. 1960)
- United States v. James, 528 F.2d 999 (5th Cir. 1976)
- Van Curen v. Ohio Adult Parole Auth., 429 U.S. 959 (U.S. 1976)
- Territory of Guam v. Olsen, 429 U.S. 959 (U.S. 1976)
- United States v. Umfress, 562 F.2d 359 (5th Cir. 1977)