Bruinton v. State

• Court: Supreme Court of Delaware
• Decided: May 28, 2015
• Docket: 246, 2015
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

TERRY BRUINTON, § § Defendant Below, § No. 246, 2015 Appellant, § § Court Below—Superior Court v. § of the State of Delaware, § in and for Sussex County STATE OF DELAWARE, § Cr. ID Nos. 1403020035 and § 1406013433 Plaintiff Below, § Appellee. § §

Submitted: May 26, 2015 Decided: May 28, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

ORDER

This 28th day of May 2015, it appears to the Court that:

(1) On May 18, 2015, the Court received the appellant’s notice of appeal

from his March 26, 2015 violation of probation (“VOP”) hearing and sentencing.

Under Supreme Court Rule 6(a)(ii), a timely notice of appeal should have been

filed on or before April 27, 2015.

(2) On May 18, 2015, the Senior Court Clerk issued a notice directing the

appellant to show cause why this appeal should not be dismissed as untimely filed

under Supreme Court Rule 6. In his response to the notice to show cause, the

appellant claims that his counsel assured him that he would file a notice of appeal. After learning from the Prothonotary’s office that no appeal was filed, Bruinton

filed a notice of appeal in the Superior Court on April 23, 2015. On April 28,

2015, Bruinton was informed that a notice of appeal had to be filed in this Court

and not the Superior Court. Bruinton then filed this appeal.

(3) Time is a jurisdictional requirement.1 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.2 An appellant’s pro se status does not excuse a failure to

comply strictly with the jurisdictional requirements of Supreme Court Rule 6.3

Unless an appellant can demonstrate that the failure to file a timely notice of

appeal is attributable to court-related personnel, an untimely appeal cannot be

considered.4

(4) The record does not support Bruinton’s claim that his counsel assured

him that he would file a notice of appeal. An “Advice Regarding Appeal From

Violation of Probation” form was signed by Bruinton’s counsel and filed in the

Superior Court. This form reflects that counsel informed Bruinton that if he

1 Carr v. State, 554 A.2d 778, 779 (Del. 1989). 2 Supr. Ct. R. 10(a). 3 Carr v. State, 554 A.2d at 779. 4 Bey v. State, 402 A.2d 362, 363 (Del. 1979).

2 wished to appeal the VOP finding or sentence, he had to file an appeal within thirty

days in this Court and that counsel was not filing a notice of appeal on his behalf.

(5) Nothing in the record reflects that the appellant’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. Thus, the Court concludes that this appeal must

be dismissed.

NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b),

that this appeal is DISMISSED.

BY THE COURT:

/s/ Karen L. Valihura Justice