Bivens v. Barkley

• Court: Supreme Court of Delaware
• Decided: July 22, 2014
• Docket: 359, 2014
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ROGER BIVENS,1 § § No. 359, 2014 Petitioner Below- § Appellant, § Court Below—Family Court § of the State of Delaware, v. § in and for Sussex County § JESSICA BARKLEY, § File No. CS09-01929 § Petition No. 13-26984 Respondent Below- § Appellee. §

Submitted: July 15, 2014 Decided: July 22, 2014

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

ORDER

This 22nd day of July 2014, it appears to the Court that:

(1) On July 1, 2014, the appellant, Roger Bivens, filed a notice of appeal

from a Family Court order dated and mailed on April 25, 2014. Under Supreme

Court Rules 6(a)(i) and 11, the notice of appeal should have been filed on or before

May 27, 2014.

(2) On July 2, 2014, the Senior Court Clerk issued a notice under

Supreme Court Rule 29(b), directing Bivens to show cause why the appeal should

not be dismissed as untimely filed. In his response to the notice to show cause

1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). filed on July 15, 2014, Bivens states that he suffers physical and mental

disabilities, he underwent surgery on his right arm, and he has been on bed rest as a

result of back problems. He asks that this Court to forgive his untimely appeal.

(3) “Time is a jurisdictional requirement.”2 Unless an appellant can

demonstrate that the failure to file a timely notice of appeal is attributable to court-

related personnel, the jurisdictional defect created by an untimely filing of an

appeal cannot be excused.3 Medical hardship does not excuse failure to comply

strictly with the jurisdictional time requirement for filing an appeal.4 Bivens does

not contend, and the record does not reflect, that his failure to file a timely appeal

is attributable to court-related personnel. Thus, this appeal must be dismissed.

NOW, THEREFORE, IT IS HEREBY ORDERED, under Supreme Court

Rule 29(b), that the within appeal is DISMISSED.

BY THE COURT:

/s/ Randy J. Holland Justice

2 Carr v. State, 554 A.2d 778, 779 (Del. 1989). 3 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 4 Dupree v. State, 2014 WL 3511160 (Del. July 14, 2014); Wilson v. W.E. Cleaver & Sons, Inc., 1998 WL 986038 (Del. Nov. 30, 1998).