Opinion
No. 230, 1999.
June 24, 1999.
Appeal from the Superior Court, Sussex County, VS95-08-0057-02, 0058-02, 0060-02.
APPEAL DISMISSED
Unpublished Opinion is below.
GEORGE K. TRAMMELL, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 230, 1999. Supreme Court of Delaware. Submitted: June 21, 1999. Decided: June 24, 1999.
Court Below: Superior Court of the State of Delaware, in and for Sussex County in Cr. A. Nos. VS95-08-0057-02, 0058-02, 0060-02, Def. ID No. 9507019321.
Before HOLLAND, HARTNETT and BERGER, Justices.
ORDER
This 24th day of June 1999, upon consideration of the appellee's motion to dismiss and the appellant's response thereto, it appears to the Court that:
(1) On April 27, 1999, the appellant, George Trammell, was adjudged guilty of violation of probation. On April 30, 1999, Trammell was sentenced to two years at Level V imprisonment, with credit for time served, followed by probation. Trammell filed this appeal on June 2, 1999.
(2) The appellee, State of Delaware ("State"), has filed a motion to dismiss Trammell's appeal. The State contends that Trammell's appeal is untimely because the notice of appeal was filed more than 30 days after Trammell's April 30 sentencing.
(3) Trammell has filed documents entitled "Motion in Limine" and "Emergency Motion to Consider . . . Excusable Delay." Trammell's documents appear to respond to the motion to dismiss. Trammell appears to concede that the notice of appeal was untimely filed, but he contends that the prison mail system is responsible for the delay. Trammell explains that he placed the notice of appeal in the prison out-going mail bin on Friday, May 28, 1999, but that because of the Memorial Day holiday, the mail was not "taken out" by prison staff, as it usually is, on Sunday of that week. The result was that Trammell's notice of appeal was not received by the Clerk's Office until Wednesday, June 2, 1999, one day after the expiration of the 30-day appeal period.
(4) "Time is a jurisdictional requirement." A party seeking to invoke the criminal appellate jurisdiction of this Court must file an appeal within the 30-day period of limitations fixed by law. A notice of appeal must be filed in the office of the Clerk of this Court within 30 days after a sentence is imposed. An untimely notice of appeal creates a jurisdictional defect "which may not be excused in the absence of unusual circumstances which are not attributable to the appellant or the appellant's attorney."
(5) Trammell contends that the jurisdictional defect in his case should be excused because the prison delayed processing the prison mail over the course of the Memorial Day weekend that immediately preceded Trammell's June 1 filing deadline. Trammell's contention is unavailing. This Court has previously considered and refused to create a separate "mailbox rule" for prisoners. Any delay caused by the prison mail system cannot justify an enlargement of the 30-day appeal period.
Carr v. State, Del. Supr., 554 A.2d 778, 779 (1989).
Del. Supr. Ct. R. 6(a)(ii), 10(a).
Riggs v. Riggs, Del. Supr., 539 A.2d 163, 164 (1988).
See Carr v. State, 554 A.2d at 779.
Id.
NOW, THEREFORE, IT IS HEREBY ORDERED that the motion to dismiss is GRANTED. Trammell's appeal is DISMISSED.
BY THE COURT:
s/ MAURICE A. HARTNETT, III,
Justice