Opinion
No. 301, 2002
Submitted: June 20, 2002
Decided: September 19, 2002
Court Below-Superior Court of the State of Delaware, in and for New Castle County, in IN89-02-1149. Def. ID No. 30901084DI
Appeal Dismissed.
Unpublished opinion is below.
BRENTON L. SMITH, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 301, 2002 In the Supreme Court of the State of Delaware. Submitted: June 20, 2002 Decided: September 19, 2002
Before WALSH, HOLLAND and BERGER, Justices.
Randy J. Holland, Justice
ORDER
This 19th day of September 2002, upon consideration of the notice to show cause, the appellant's response to the notice to show cause, and the appellee's reply to the response, it appears to the Court that:
(1) On May 28, 2002, the appellant, Brenton L. Smith, filed an untimely notice of appeal from the Superior Court's order of February 22, 2002, that denied Smith's motion for modification of sentence. Smith was required to file the notice of appeal with the Clerk of this Court no later than March 25, 2002.
An appeal must be filed within thirty days after entry upon the docket of the order from which the appeal is taken. Supr. Ct. R. 6.
(2) On May 28, 2002, the Clerk issued a notice directing Smith to show cause why his appeal should not be dismissed as untimely filed. In his response to the notice to show cause, as well as in a letter he submitted with his untimely notice of appeal, Smith explains that he initially filed the notice of appeal in the Superior Court. According to Smith, the Prothonotary failed to inform him of his filing error in a timely manner and thus caused him to file the notice of appeal in this Court in an untimely manner.
(3) "`[T]he appellate jurisdiction of this Court rests wholly upon the perfecting of an appeal within the period of limitations fixed by law.'"
Riggs v. Riggs, Del. Supr., 539 A.2d 163 (1988) (quoting Fisher v. Biggs, Del. Supr., 284 A.2d 117, 118 (1971)).
Contrary to Smith's contentions, an appellant's pro se status does not excuse a failure to comply strictly with the jurisdictional requirements.
Carr v. State, 554 A.2d 778 (Del. 1989).
(4) A notice of appeal must be received by the Office of the Clerk of this Court within the applicable time period to be effective. Filing a notice of appeal with the Superior Court Prothonotary does not constitute compliance with the Rules of this Court.
Supr. Ct. R. 10(a).
Smith v. State, 2002 WL 51564 (Del.Supr.); Fisher v. State, 1995 WL 715876 (Del.Supr.); Semonelle v. State, 1989 WL 136927 (Del.Supr.).
(5) This Court lacks jurisdiction to consider an appeal when the notice of appeal is not filed in a timely manner, unless the appellant can demonstrate that the failure to file a timely notice of appeal is attributable to court related personnel. In this case, the Court has concluded that the record does not support a finding that the delay in filing Smith's notice of appeal is attributable to court-related personnel. There is no evidence to suggest that the Prothonotary did anything to lead Smith to believe that his appeal had been perfected.
Bey v. State, 402 A.2d 362, 363 (Del. 1979).
Cf. Riggs v. Riggs, 539 A.2d 163, 164 (Del. 1988) (excusing delay when there was evidence in the record to suggest that the Family Court had led the appellant to believe that the appeal had been properly filed in that court).
Therefore, Smith's case does not fall within the exception to the general rule which mandates the timely filing of a notice of appeal.
NOW, THEREFORE, IT IS HEREBY ORDERED that the appeal is DISMISSED.