404 F2d 352 McDaniel v. L Wainwright

404 F.2d 352

Walter Lee McDANIEL, Appellant,
v.
Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Appellee.

No. 26597.

United States Court of Appeals Fifth Circuit.

December 18, 1968.

Walter Lee McDaniel, pro se.

Earl Faircloth, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., for appellee.

Before RIVES, BELL and MORGAN, Circuit Judges.

PER CURIAM:

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1

The appellee has moved to dismiss the appeal because notice of appeal was not filed for almost nine months after the date of final judgment. No excuse for the delay has been suggested by the appellant.

2

The district court issued an order purporting to grant a certificate of probable cause and leave to appeal in forma pauperis. Because the notice of appeal was untimely filed, the district court lacked jurisdiction to enter that order, and this court has no jurisdiction of the appeal. Rules 4(a), 26(b), F.R.App.P.; Allen v. Wainwright, 384 F.2d 745, (5th Cir. 1967); Kapsalis v. Wilson, 380 F.2d 365 (9th Cir. 1967), cert. denied 389 U.S. 878, 88 S.Ct. 180, 19 L.Ed.2d 168 (1967).

3

The appellee's motion to dismiss the appeal is granted.