Opinion
No. 498, 2003.
Submitted: May 13, 2004.
Decided: June 25, 2004.
Superior Court of the State of Delaware, in and for New Castle County in N02-04-2366A, Def. ID No. 0122001247.
Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices.
ORDER
This 25th day of June 2004, upon consideration of the briefs of the parties, it appears to the Court that:
(1) In February 2002, a Court of Common Pleas jury convicted Kevin L. Dickens of one count of Criminal Trespass in the Second Degree and one count of Failure to Submit to Fingerprinting and Photographs. Dickens was sentenced to thirty days at Level V for Criminal Trespass in the Second Degree and to 120 days at Level V, suspended after thirty days, for Failure to Submit to Fingerprinting and Photographs.
(2) Dickens appealed his conviction for Failure to Submit to Fingerprinting and Photographs to the Superior Court. By decision dated July 11, 2003, the Superior Court affirmed. Dickens did not immediately appeal the Superior Court's decision to this Court. Instead, on August 7, 2003, he filed a motion for reargument in the Superior Court. By order dated September 16, 2003, the Superior Court denied the motion for reargument on the basis that the motion was untimely under the Superior Court Rules.
Dickens v. State, 2003 WL 21982924 (Del.Super.Ct.).
Dickens v. State, 2003 WL 22172737 (Del.Super.Ct.).
(3) Dickens has appealed the Superior Court's order of September 16, 2003, that denied his motion for reargument. In his opening brief, Dickens also alleges errors that were made at his trial in the Court of Common Pleas.
(4) A motion for reargument must be filed within five days after the filing of the Superior Court's decision. The time allotted for filing a motion for reargument may not be extended. Moreover, only a timely filed motion for reargument will suspend the finality of the judgment and toll the time in which to file a notice of appeal with this Court.
Super. Ct. Civ. R. 59(e); see also Super. Ct. Crim. R. 57(d) (providing for the application of the Superior Court Civil Rules).
Super. Ct. Civ. R. 6(b).
Linda D.P. v. Robert J.P., 493 A.2d 968 (Del. 1985); Duffy v. State, 1998 WL 138945 (Del.Supr.).
(5) In this case, the Superior Court's July 11 order was docketed on July 16, 2003. Consequently, Dickens' motion for reargument was due to be filed on or before July 23, 2003. Dickens did not file his motion until August 7, 2003, fifteen days after the expiration of the July 23 deadline.
See Super. Ct. Crim. R. 45(a) (excluding Saturday and Sunday from computation).
(6) Dickens' motion for reargument was untimely and did not serve to toll the thirty-day period in which to appeal from the Superior Court's July 11 decision. As a result, Dickens' appeal from the July 11 decision had to be filed no later than August 15, 2003. Dickens' notice of appeal was not filed until October 2, 2003. Thus, his appeal is limited to addressing the September 16, 2003, denial of his motion for reargument and does not extend to addressing the merit of his appeal.
Saunders v. State, 1998 WL 112556 (Del.Supr.).
(7) Dickens concedes that his motion for reargument was untimely, and he acknowledges that he was unaware of the five-day time period for filing a motion for reargument. Nonetheless, Dickens urges the Court to accept his appeal as if it were timely filed from the Superior Court's July 11 decision on the basis that prison officials "denied [him] access to the courts and legal documents@ from July 23, 2003 until August 15, 2003, when he was "put in infirmary and isolation."
(8) Dickens' claim that prison officials prevented him from filing a timely notice of appeal on or before August 15, 2003, is not persuasive. His contention is belied by the fact that he filed his motion for reargument in the Superior Court on August 7, 2003, during the period of time in which he claims that he was denied access to the courts.
The record reflects that the motion is dated August 5, 2003, and bears a postmark of August 6, 2003.
(9) We have concluded that the judgment should be affirmed on the basis of the Superior Court's order of September 16, 2003. Dickens' motion for reargument was not filed within the five-day reargument period. Because the motion for reargument was untimely, the Superior Court had no jurisdiction to consider it.
Preform Building Components, Inc. v. Edwards, 280 A.2d 697, 698 (Del. 1971).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.