Opinion
No. 207, 2000.
Decided: June 19, 2000.
Superior (Sussex) CR 9908010828 and 9609018707.
Appeal dismissed.
Unpublished Opinion is below.
PATRICK A. HENRY, Defendants Below, Appellants v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 207, 2000. In the Supreme Court of the State of Delaware. Submitted: June 15, 2000. Decided: June 19, 2000.
Superior Court of the State of Delaware in and for Sussex County, Cr. ID Nos. 9908010828 and 9609018707.
Before VEASEY, Chief Justice, WALSH and BERGER, Justices.
ORDER
This 19th day of June 2000, it appears to the Court that:
(1) On May 3, 2000, the Court received a letter from appellant stating his desire to appeal his violation of probation sentencing order of February 11, 2000. On May 5, 2000, the Assistant Clerk acknowledged his letter and directed the appellant to file a formal notice of appeal from the Superior Court's denial of his motion for correction of sentence on April 14, 2000. On May 17, 2000, a formal notice of appeal was received from the appellant, again stating that he was appealing from the violation of probation sentencing order of February 11, 2000.
(2) Pursuant to Supreme Court Rule 6, a timely notice of appeal from the February 11, 2000, decision should have been filed on or before March 13, 2000. An appeal from the April 14, 2000, decision would have been due on or before May 15, 2000. Had appellant been appealing from the April 14, 2000, decision, his appeal would have been timely.
(3) On May 19, 2000, the Senior Court Clerk wrote to appellant requesting that he file an amended notice of appeal if he wished to appeal from the Superior Court's Order of April 14, 2000. The appellant was advised that if he wished to appeal from the Superior Court's February 11, 2000 decision, such appeal would be untimely and a notice to show cause would issue. On May 30, 2000, the appellant filed an amended notice of appeal, again stating that he was appealing the Superior Court's decision of February 11, 2000.
(4) On May 30, 2000, the Clerk issued a notice pursuant to Supreme Court Rule 29(b) directing the appellant to show cause why the appeal should not be dismissed as untimely filed. The appellant filed on June 5, 2000, a letter which appears to be dated June 1, 2000. The appellant's letter is non-responsive to the notice to show cause because it discusses his inability to participate in the Key program. The appellant did not provide any explanation for filing an appeal from a February 11, 2000, decision after the 30-day appeal period had expired, nor did he state that he wished to appeal the April 14, 2000, decision. The Court has not received any other correspondence from the appellant.
(5) Time is a jurisdictional requirement. Carr v. State, Del. Supr., 554 A.2d 778, 779, cert. denied, 493 U.S. 829 (1989). A notice of appeal must be received by the Office of the Clerk of this Court within the applicable time period in order to be effective. Supr. Ct. R. 10(a). Unless an appellant can demonstrate that the failure to file a timely notice of appeal is attributable to court-related personnel, his appeal cannot be considered. Bey v. State, Del. Supr., 402 A.2d 362, 363 (1979).
(6) There is nothing in the record that reflects that appellant's failure to file a timely notice of appeal in this case is attributable to court-related personnel. Consequently, this case does not fall within the exception to the general rule that mandates the timely filing of a notice of appeal. Thus, the Court concludes that the within appeal must be dismissed.
NOW, THEREFORE, IT IS ORDERED, pursuant to Supreme Court Rules 6 and 29(b), that the within appeal is DISMISSED.