Opinion
No. 503, 2003.
Submitted: October 27, 2003.
Decided: November 25, 2003.
Court Below — Family Court of the State of Delaware, in and for Sussex County in File No. 0304008600.
Before HOLLAND and BERGER and STEELE, Justices.
ORDER
This 25th day of November 2003, the Court has considered the notice to the appellant to show cause why this appeal should not be dismissed and the appellant's response to the notice to show cause, and it appears to the Court that:
(1) By order dated May 12, 2003, a Family Court Commissioner found the appellant, Ida M. Jackson, in criminal contempt for failing to obey a protection from abuse order. Jackson sought to appeal the Commissioner's order to a Family Court judge. By order dated September 9, 2003, however, the Family Court dismissed Jackson's appeal as untimely. On October 8, 2003, Jackson filed a notice of appeal from the Family Court's order of dismissal.
(2) Jackson's appeal to this Court, at this juncture, must be dismissed for lack of jurisdiction. An appeal in any Family Court criminal proceeding must be filed in the first instance with the Superior Court. In the event the Superior Court affirms the decision of the Family Court or enters a judgment of conviction upon a trial de novo, there is a further right of appeal to this Court.
See Del. Code Ann. tit. 10 Del. C. § 1051(b) (1999) (providing that "from any order, ruling, decision or judgment of the [Family] Court in any criminal proceeding, there shall be the right of appeal in the first instance as provided by law to the Superior Court").
Id.
(3) In response to the notice to show cause, the Clerk's Office was advised that Jackson was inadvertently misinformed by Family Court personnel that the Supreme Court had jurisdiction over her appeal in this case, and that Jackson acted upon that information to her detriment. Under these circumstances, and with Jackson's time for filing an appeal to the Superior Court having elapsed, the Court finds it appropriate and in the interest of justice, to remand the case to the Family Court for the issuance of a new final order from which Jackson can seek an appeal to the Superior Court.
See tit. 10, § 1051(c) (providing that "an appeal shall be taken within 30 days from the date of the disposition, or with such time as provided by law.").
See Sheeran v. State, 526 A.2d 886, 888 (Del. 1987) (vacating sentence and reimposing the same sentence for the purpose of filing a timely appeal).
NOW, THEREFORE, it is ordered that this appeal is DISMISSED, pursuant to Supreme Court Rule 29(b), and the matter is REMANDED to the Family Court with instructions to enter a new final order.