Filed: Dec. 09, 2019
Latest Update: Dec. 09, 2019
Summary: OPINION AND ORDER 1 SHERI POLSTER CHAPPELL , District Judge . This matter comes before the Court on a limited remand from the Eleventh Circuit Court of Appeals to determine if Petitioner is entitled to an extension of the appeal period under Fed. R. App. P. 4(a)(6) ( Doc. 17 ) filed on December 6, 2019. Pursuant to Fed. R. Civ. P. 77(d): Immediately after entering an order or judgment, the clerk must serve notice of the entry, as provided in Rule 5(b), on each party who is not in defaul
Summary: OPINION AND ORDER 1 SHERI POLSTER CHAPPELL , District Judge . This matter comes before the Court on a limited remand from the Eleventh Circuit Court of Appeals to determine if Petitioner is entitled to an extension of the appeal period under Fed. R. App. P. 4(a)(6) ( Doc. 17 ) filed on December 6, 2019. Pursuant to Fed. R. Civ. P. 77(d): Immediately after entering an order or judgment, the clerk must serve notice of the entry, as provided in Rule 5(b), on each party who is not in default..
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OPINION AND ORDER1
SHERI POLSTER CHAPPELL, District Judge.
This matter comes before the Court on a limited remand from the Eleventh Circuit Court of Appeals to determine if Petitioner is entitled to an extension of the appeal period under Fed. R. App. P. 4(a)(6) (Doc. 17) filed on December 6, 2019.
Pursuant to Fed. R. Civ. P. 77(d):
Immediately after entering an order or judgment, the clerk must serve notice of the entry, as provided in Rule 5(b), on each party who is not in default for failing to appear. The clerk must record the service on the docket. A party also may serve notice of the entry as provided in Rule 5(b).
According to the Court's docket sheet, the Court's Opinion and Order denying the Petition and the subsequent Judgment were entered on August 28, 2019. The Opinion and Order and Judgment were mailed to the Petitioner on August 28, 2019, and the mailing was recorded on the Court's docket. Thus, the clerk complied with the provisions of Rule 77(d).
Petitioner's Notice of Appeal (Doc. 15) was filed with the District Court on October 2, 2019. The envelope in which the Notice of Appeal arrived bears a date stamp by the Desoto County Correctional Institution indicating that the enclosed document was received by the Desoto County Correctional Institution's mailroom on September 29, 2019. Additionally, the envelope was processed through the U.S. Mail in Tampa, Florida, on September 30, 2019, before arriving in Fort Myers, Florida. Therefore, the Court finds that the Notice of Appeal was delivered to Desoto County Correctional Institution officials by Petitioner on September 29, 2019.
Under Fed. R. App. P. 4(a)(6), Plaintiff's Notice of Appeal was due on or before September 28, 2019. After a review of the record, Petitioner received notice of the denial of his Petition in compliance with Fed. R. Civ. P. 77(d) and he Failed to file his Notice of Appeal within the thirty (30) day time limit as designated by Fed. R. App. P. 4(a). Consequently, Petitioner does not merit an extension of time of the appeal period.
Accordingly, it is now
ORDERED:
The Clerk of Court shall return the record as supplemented with a copy of this Order to the Eleventh Circuit Court of Appeals for further proceedings.
