Opinion
No. 547, 1998.
January 14, 1999.
Court Below: Superior Court in the State of Delaware, in and for Sussex County, in Cr.A. Nos. 97-02-0033, -0034, -0035(R1).
APPEAL DISMISSED.
Unpublished Opinion is below.
HERBERT ELEY, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 547, 1998. In the Supreme Court of the State of Delaware. Submitted: January 12, 1999. Decided: January 14, 1999.
Court Below: Superior Court in the State of Delaware, in and for Sussex County, in Cr.A. Nos. 97-02-0033, -0034, -0035(R1).
Before HOLLAND, HARTNETT, and BERGER, Justices.
ORDER
This 14th day of January 1999, it appears to the Court that:
1. On December 23, 1998, the Court received the appellant's untimely notice of appeal from the Superior Court's order dated October 20, 1998, docketed October 21, 1998, denying the appellant's motion for post-conviction relief. Pursuant to Supreme Court Rule 6, a timely notice of appeal should have been filed on or before November 20, 1998.
2. On December 23, 1998, 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 his response to the notice to show cause on January 12, 1999.
3. The appellant states that the Superior Court October 20 Order was not received until some time in late November. The appellant goes on to say that the prison mail room has a back log and it sometimes takes several weeks to receive mail and this is what precluded the appellant from filing a timely notice of appeal. 4. Appellant's argument is not persuasive. The Court has previously considered and refused to create a separate "mailbox rule" for prisoners. Carr v. State, Del. Supr., 554 A.2d 778, 779, cert. denied, 493 U.S. 829 (1989). Any delay caused by the prison mail system cannot justify an enlargement of the thirty-day period. Dunham v. State, Del. Supr., No. 407, 1986, Horsey, J., (Feb. 24, 1987) (ORDER). Time is a jurisdictional requirement. Carr v. State, supra. 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). An appellant's pro se status does not excuse a failure to comply strictly with the jurisdictional requirements of Supreme Court Rule 6. Carr v. State, supra. Unless the 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).
5. There is nothing in the record which 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.
BY THE COURT:
/s/ Maurice A. Hartnett, III, Justice