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Wilmer v. State

Supreme Court of Delaware

September 23, 2013

Gerald A. WILMER, Defendant Below-Appellant,
v.
STATE of Delaware, Plaintiff Below-Appellee.

Submitted: Sept. 18, 2013.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below— Superior Court of the State of Delaware in and for New Castle County, Cr. ID No. 9603002509.

Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.

ORDER

MYRON T. STEELE, Chief Justice.

This 23rd day of September 2013, it appears to the Court that:

(1) On September 9, 2013, the Court received the appellant's notice of appeal from the Superior Court's order, dated and entered on the docket on August 2, 2013, which denied his seventh motion for postconviction relief pursuant to Superior Court Criminal Rule 61. Pursuant to Supreme Court Rule 6, a timely notice of appeal from the Superior Court's order should have been filed on or before September 2, 2013.

(2) On September 9, 2013, the Clerk issued a notice pursuant to Rule 29(b) directing the appellant to show cause why the appeal should not be dismissed as untimely filed. The appellant filed his response to the notice to show cause on September 18, 2013. The appellant states that his filing was untimely because the prison delayed in mailing it to the Court.

(3) Pursuant to Rule 6(a)(iii), a notice of appeal in any proceeding for postconviction relief must be filed within 30 days after entry upon the docket of the judgment or order being appealed. Time is a jurisdictional requirement. [1] A notice of appeal must be received by the Office of the Clerk of the Court within the applicable time period in order to be effective.[2] An appellant's pro se status does not excuse a failure to comply strictly with the jurisdictional requirements of Rule 6.[3] Unless the appellant can demonstrate that the failure to file a timely notice of appeal is attributable to court-related personnel, his appeal may not be considered.[4]

(4) There is nothing in the record before us reflecting that the appellant'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 this appeal must be dismissed.

NOW, THEREFORE, IT IS ORDERED, pursuant to Supreme Court Rule 29(b), that this appeal is DISMISSED.


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