Opinion
ID. No. 9609002441. Family Court File #AN93-0598; Family Court Petition #96090061.00.
January 6, 2000. Motion Granted: February 8, 2000.
ORDER
This 6th day of January, 2000, having considered the parties' submissions, the Court concludes as follows:
1. On October 26, 1996, Appellant William C. Boyce ("Boyce") was convicted in the Family Court in and for New Castle County of Offensive Touching in violation of 11 Del. C. § 601. On January 10, 1997, Boyce was sentenced to thirty days at Level V, suspended for twelve (12) months at Level II.
2. On January 8, 1998, Boyce pled guilty to violation of probation and was sentenced to thirty days at Level V followed by six months at Level III. Boyce was incarcerated from January 8, 1998 until February 4, 1998.
Boyce, by and through his attorney, P. Bradford deLeeuw, contested the sentence at the time it was imposed and subsequently filed a Motion for Correction of Sentence on March 23, 1998. The motions were denied on April 23, 1998 and May 14, 1998, and Boyce did not file an appeal.
3. On September 28, 1998, Boyce again pled guilty to violation of probation and was sentenced to thirty days at Level V, suspended for three months at Level IV followed by three months at Level III; hold at Level V until Level IV was available. Boyce was incarcerated from September 28, 1998 until November 5, 1998 awaiting availability at Level IV.
On October 28, 1998, Boyce filed a Writ of Habeas Corpus and an Appeal on the Record in this Court. On November 4, 1998, Boyce's Writ of Habeas Corpus was granted and Boyce was released.
Boyce v. State, Del. Super., C.A. No. 98M-10-061, Alford, J. (Nov. 4, 1998) (finding that petitioner had been sentenced for a period longer than permitted by 11 Del. C. § 4206).
4. After the Writ of Habeas Corpus was granted, Boyce continued to pursue the appeal. Boyce argued that it was not moot because he seeks to have his case remanded to the Family Court for a correction of the sentence in the Family Court records.
5. On November 5, 1998, this Court ordered Boyce's attorney and the State to submit memoranda of law addressing the jurisdiction of this Court to hear the appeal. Boyce filed a memorandum in support of this Court's jurisdiction to hear the appeal, and the State filed a Motion to Dismiss for Lack of Jurisdiction to hear the appeal.
6. This Court has delayed ruling on this appeal in anticipation of receiving the record below from the Family Court. On May 19, 1999, in an effort to obtain the record, the Prothonotary issued a Notice to Show Cause why the appeal should not be dismissed due to failure to diligently prosecute the appeal; specifically, failure to provide a certified copy of the record, including a transcript of the testimony, as required by Superior Court Civil Rule 72(e). As of the date of this Order, the Court has not yet received the record below.
7. Even absent the Family Court record, it is clear that the appeal is time barred and this Court therefore lacks jurisdiction to hear the matter.
8. The statutory provisions for Family Court do not contain an express and complete set of procedures for appeal to the Superior Court. Since the General Assembly has not provided a complete procedural method of appeal front Family Court, the Rules of the Superior Court apply.
Poe v. Poe, Del. Super., 333 A.2d 403, appeal dismissed, Del. Supr., 348 A.2d 327 (1975); Fam.Ct.Crim.R. 37.
Boyce's appeal constitutes a collateral proceeding within the meaning of Delaware Superior Court Criminal Rule 39(g). This Rule states, in pertinent part, that:
State v. Outlaw, Del. Super., Cr. A. Nos. 9508018647, 9409002336, Barron, J. (Jan. 7, 1998), aff'd, Del. Supr., No. 197, 1998, Holland, J. (Dec. 2, 1998).
(g) Collateral proceedings. A person who claims that a final conviction in another court is subject to collateral attack must first apply for relief in the other court. An appeal may be taken to this court within 15 days after the court below has entered a final order on the application . . .
9. As to the January 8, 1998 sentence, Boyce's attorney promptly filed a Motion for Correction of Sentence which was denied by orders dated April 23, 1998 and May 14, 1998. Pursuant to Rule 39(g), the defendant had 15 days to appeal to the Superior Court. This appeal was not filed until October 28, 1998.
As to the September 28, 1998 sentence, Boyce did not move the Family Court to correct the sentence before filing this appeal on October 28, 1998. Therefore, not only is this appeal untimely because it was filed more than 15 days after the court below entered final judgment, but Boyce failed to comply with Rule 39 (g) by not first moving the Family Court to correct the September 28, 1998 sentence.
10. When a party fails to perfect his appeal within the period mandated by statute or court rule, a jurisdictional defect is created which may not be excused in the absence of unusual circumstances which are not attributed to the appellant. When an appeal is not filed within the applicable time period, this Court is without jurisdiction to entertain the appeal. A court cannot waive a jurisdictional defect even where there is an excusable lack of knowledge of the proper procedure necessary to perfect an appeal. Therefore, the appeals of both the January 8, 1998 sentence and the September 28, 1998 sentence are untimely and this Court is without jurisdiction to hear the appeal.
Riggs v. Riggs, Del. Supr., 539 A.2d 163 (1988).
Carr v. State, Del. Supr., 554 A.2d 778 (1988), cert. denied, 493 U.S. 829 (1989).
Eller v. State, Del Super., 531 A.2d 951 (1987).
Carr, 554 A.2d at 779; (citing Scott v. Draper, Del. Supr., 371 A.2d 1073, 1074 (1977)).
11. An appeal may be dismissed for lack of jurisdiction or for failure to comply with a statutory requirement or rule of this court. Here, the appeal fails to comply with Superior Court Civil Rule 39(g) in that it was filed more than 15 days after a final judgment was entered by the Family Court, and in the case of the September 28, 1998 order, Boyce failed to first apply for relief in the Family Court.
Del. Super. Ct. Crim. R. 39(h).
For the reasons stated above, the State's Motion to Dismiss is GRANTED and the appeal is DISMISSED.
IT IS SO ORDERED.