Opinion
No. 71-3639.
March 2, 1972.
Paul Willoughby Granville pro. se.
Robert W. Rust, U.S. Atty., Charles O. Farrar, Jr., Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
Granville is a federal prisoner presently serving a confinement sentence imposed December 18, 1969, from which no direct appeal was taken. He now appeals from the denial below of his motion to modify that sentence pursuant to Rule 35, Federal Rules of Criminal Procedure.
The appellant has applied to this Court for appointment of counsel to prosecute this appeal. The record shows, however, that the motion for modification of sentence was filed some 20 months after the appellant's sentence had become final. Rule 35 provides that such a motion must be filed within 120 days after sentencing in a case in which no direct appeal was taken. Since no direct appeal was taken from the judgment and sentence in this case, the court below lacked jurisdiction to grant the relief requested, and this Court has no jurisdiction over the appeal. Rule 45(b), F.R.Crim.P.; United States v. Gorman, 5 Cir. 1970, 431 F.2d 632; United States v. Ellenbogen, 2 Cir. 1968, 390 F.2d 537, cert. denied 1968, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206.
The appellant's motion for appointment of counsel is denied and the appeal is dismissed.
Appeal dismissed.