Opinion
No. 27, 1999.
February 11, 1999.
Court Below: Superior Court in the State of Delaware, in and for New Castle County, Cr.A. Nos. IN96-10-0892 and -0895.
APPEAL DISMISSED.
Unpublished Opinion is below.
CHRISTOPHER KINZER, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 27, 1999. In the Supreme Court of the State of Delaware. Submitted: February 3, 1999. Decided: February 11, 1999.
Court Below: Superior Court in the State of Delaware, in and for New Castle County, Cr.A. Nos. IN96-10-0892 and -0895.
Before VEASEY, Chief Justice, WALSH and HARTNETT, Justices.
ORDER
This 11th day of February 1999, it appears to the Court that:
1. The appellant Christopher Kinzer pleaded guilty to unlawful sexual contact third degree and endangering the welfare of a child in April 1998. The Superior Court sentenced Kinzer on June 26, 1998 to one year at Level V incarceration for each charge. Both sentences were suspended, however, for lower levels of supervision. On January 21, 1999, the Court received the appellant's notice of appeal from the Superior Court's sentencing order. Pursuant to Supreme Court Rule 6, a timely notice of appeal should have been filed on or before July 27, 1998.
The notice of appeal states that the sentence appealed from was pronounced on May 26, 1998; however, the lower court docket reflects that Kinzer's sentencing actually occurred on June 26, 1998.
2. On January 25, 1999, the Clerk issued a notice pursuant to Supreme Court Rule 29(b) directing Kinzer to show cause why the appeal should not be dismissed as untimely filed. Kinzer filed his response to the notice to show cause on February 3, 1999.
3. Kinzer provides no explanation why he did not timely file his appeal other than he was informed "By the State of Delaware DAG that I was not aloud (sic) to apeal (sic)." The other issues raised in his response appear to address the merits of the appeal and are non-responsive.
4. Kinzer's argument is not persuasive. Time is a jurisdictional requirement. Carr v. State, Del. Supr., 554 A.2d 778, 779, cert. denied, 493 U.S. 829 (1989). 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). Unless Kinzer 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 Kinzer'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 Rule 29(b), that the within appeal is DISMISSED.
BY THE COURT:
/s/ E. NORMAN VEASEY, Chief Justice