Opinion
No. 74, 2009.
May 13, 2009.
Court Below — Superior Court of the State of Delaware in and for Kent County, Def. ID No. 0709007937.
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices.
ORDER
This 13th day of May 2009, it appears to the Court that:
(1) On February 18, 2009, the Court received Leroy Hefley's untimely notice of appeal from the Superior Court's opinion and order dated November 18, 2008 that affirmed a judgment of the Court of Common Pleas. Pursuant to Supreme Court Rule 6, a timely notice of appeal should have been filed on or before December 18, 2008.
Del. Supr. Ct. R. 6(a).
(2) On February 19, 2009, the Clerk issued a notice directing that Hefley show cause why the appeal should not be dismissed as untimely filed. Hefley filed a response to the notice to show cause on March 4, 2009. Hefley's response does not address the jurisdictional issue raised in the notice to show cause.
Del. Supr. Ct. R. 29(b).
(3) Under Delaware law, a notice of appeal must be received by the Office of the Clerk within the applicable time period to be effective. Unless an appellant can demonstrate that the failure to timely file a notice of appeal is attributable to court-related personnel, an untimely appeal cannot be considered.
See Carr v. State, 554 A.2d 778, 779 (Del. 1989) (stating that "[t]ime is a jurisdictional requirement"); Del. Supr. Ct. R. 10(a).
Bey v. State, 402 A.2d 362, 363 (Del. 1979).
(4) Hefley does not contend, and the record does not reflect, that his failure to timely file the notice of appeal is attributable to court-related personnel. This case does not fall within the exception to the general rule that mandates the timely filing of a notice of appeal.
NOW, THEREFORE, IT IS ORDERED, pursuant to Supreme Court Rule 29(b), that the appeal is DISMISSED.