JOHNSON v. STATE, 363 A.2d 439 (Del. 1976)

Anthony L. JOHNSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.Submitted June 14, 1976.
Decided July 19, 1976.

Upon appeal from Superior Court. Affirmed.

Arlen B. Mekler, Asst. Public Defender, Wilmington, for defendant below, appellant.

John J. O’Brien, Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

Before HERRMANN, C.J., and DUFFY and MCNEILLY, JJ.

PER CURIAM.

In this burglary case, the State’s brief remained unfiled many months after its due date under the Rule, without leave of Court.

The appeal was taken under advisement upon the basis of the appellant’s brief alone.

The attention of the Bar is directed to the following statement in Smith v. State, Del.Supr., 361 A.2d 237, 239 n. 3 (1976):

“We take this opportunity to comment on our denial of defendant’s motion for default judgment based upon the State’s failure to respond to defendant’s opening brief for a period of five months, without seeking approval of an extension of time by this Court or taking any other appropriate step in the cause.

. . . .

Such gross non-compliance with the Rules of this Court will not be tolerated, and will be considered in the future as sufficient cause for the entry of a default decree, disciplinary action against offending counsel, or such other relief as may seem just and proper under the circumstances.”

Page 440

Upon due consideration of the defendant’s contentions it is concluded:

(1) There was no reversible error in the admission of the out-of-court statement of the defendant; and

(2) There was no reversible error in the conviction of burglary under the evidence.

* * * * * *
Affirmed.