It is ORDERED that, except in cases in which there has been a conviction of first degree murder, whenever the clerk of this court (clerk) shall not have received the brief and appendix of an appellant (including in that term a party treated as an appellant under Rule 5 of the Massachusetts Rules of Appellate Procedure (Rules) ) within the time required or permitted by Rules 11(g) , 13(a) , 18(a) and 19(a) (unless said time shall previously have been enlarged or unless, in the case of an appendix, the filing shall have been deferred or dispensed with under Rule 18(c) or (f) ), the clerk shall send a copy of this order by first class mail to the attorney of record for such appellant (and to such appellant at his last known address in a criminal case or if he is not represented by such an attorney in a civil case) and to all other parties or to their attorneys of record, together with notice in writing that the appeal of such appellant or the report, as the case may be, will be dismissed as to him for lack of prosecution unless, within twenty-one days of the date of such notice in a civil case or within thirty days of the date of such notice in a criminal case, the clerk shall receive (a) a motion by such appellant to enlarge to a date certain set forth therein the time for serving and filing such brief and appendix and (b) an affidavit of such appellant (or his attorney) which shall set forth all the facts which such appellant wishes to have considered by the single justice of this court, who will act on such motion in accordance with the provisions of Rule 15(b) and (c) . If no such motion and affidavit are received by the clerk within such period, the clerk shall forthwith dismiss such appeal or report for lack of prosecution and shall note such dismissal on the docket. The clerk shall take like action whenever a particular appellant has failed to serve and file his brief or appendix (when an appendix is required) within an enlargement of time previously granted. The sending of every notice required by this order shall be noted on the docket. Unless a dismissal shall have been vacated by a single justice within twenty-one days from the docketing thereof, the clerk shall notify the clerk of the trial court that the appeal or report has been dismissed as to the particular appellant for lack of prosecution. A dismissal in a criminal case may be vacated by a single justice of this court after the expiration of said twenty-one days upon a showing of the existence of a meritorious case.
Adopted May 17, 1988, effective July 1, 1988.
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