DEPUTY v. STATE, 792 A.2d 188 (Del. 2002)

PAUL DEPUTY, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee.

No. 2, 2002Supreme Court of Delaware.
Decided: February 27, 2002

Court Below-Superior Court of the State of Delaware, in and for Sussex County Cr.ID No. 0101025156

Appeal Dismissed.

Unpublished opinion is below.

PAUL DEPUTY, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 2, 2002 In the Supreme Court of the State of Delaware. Submitted: February 5, 2002 Decided: February 27, 2002

Before VEASEY, Chief Justice, WALSH and STEELE, Justices

E. Norman Veasey, Chief Justice:

ORDER
This 27th day of February 2002, it appears to the Court that:

(1) On January 2, 2002, this Court received Paul Deputy’s untimely notice of appeal from the Superior Court’s November 9, 2001 sentencing order. Pursuant to Supreme Court Rule 6, a timely notice of appeal should have been filed on or before December 10, 2001.

(2) On January 3, 2002, the Clerk issued a notice pursuant to Supreme Court Rule 29(b) directing Deputy to show cause why the appeal should not be dismissed for his failure to file his notice of appeal within 30 days after his sentence was imposed, as required by Supreme Court Rule 6.

(3) On February 5, 2002, Deputy filed a response to the notice to show cause. In his response, Deputy contends that he requested his attorney to file a notice of appeal, but that his attorney failed to do so.

(4) Time is a jurisdictional requirement.[1] A notice of appeal must be received by the Office of the Clerk of the Supreme Court within the applicable time period in order to be effective.[2] Unless Deputy can demonstrate that his failure to file a timely notice of appeal is attributable to court-related personnel, the appeal can not be considered.[3]

(5) There is nothing in the record reflecting that Deputy’s failure to file a timely notice of appeal 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. The Court, therefore, concludes that the appeal must be dismissed.[4]

NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rules 6 and 29(b), the within appeal is DISMISSED.

[1] Carr v. State, 554 A.2d 778, 779, cert. denied, 493 U.S. 829
(1989).

[2] SUPR. CT. R. 10(a).

[3] Bey v. State, 402 A.2d 362, 363 (Del. 1979).

[4] Deputy’s assertion that the failure to file a timely notice of appeal is attributable to his counsel is an issue that can be resolved by the Superior Court through the postconviction process. SUPER. CT. CRIM. R. 61; Dixon v. State, 581 A.2d 1115 (Del. 1990).