Dearry v. State

• Court: Supreme Court of Delaware
• Decided: March 1, 2018
• Docket: 495, 2017
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMAAL DEARRY, § § No. 495, 2017 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § I.D. No. 1411015404 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: December 11, 2017 Decided: March 1, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

ORDER

This 1st day of March 2018, it appears to the Court that:

(1) On November 27, 2017, the appellant, Jamaal Dearry, filed this appeal

from the Superior Court’s order of July 21, 2017, docketed on July 24, 2017, denying

his motion for postconviction relief.1 On its face, the notice of appeal was untimely

filed. Under Supreme Court Rule 6, the appeal was due to be filed on or before

August 23, 2017.2

1 State v. Dearry, 2017 WL 3131106 (Del. Super. Ct. July 21, 2017). 2 Del. Sup. Ct. R. 6(a)(iv) (providing that an appeal in a proceeding for postconviction relief must be filed within thirty days after entry upon the docket of the order on appeal.) (2) A notice of appeal must be timely filed to invoke the Court’s appellate

jurisdiction.3 The jurisdictional defect created by the untimely filing of a notice of

appeal cannot be excused unless the appellant can demonstrate that the delay in filing

the appeal is attributable to court-related personnel.4

(3) On November 28, 2017, the Clerk issued a notice directing Dearry to

show cause why his appeal should not be dismissed as untimely filed. Dearry’s

response to the notice to show cause argues the merits of his motion for

postconviction relief, but it does not address or explain his failure to file a timely

notice of appeal. Because Dearry does not contend, and the record does not reflect,

that his failure to file a timely appeal is attributable to court personnel, this case does

not fall within the exception to the general rule that mandates the timely filing of a

notice of appeal.

NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rules 6 and

29(b), that the appeal is DISMISSED.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice

3 Carr v. State, 554 A.2d 778, 779 (Del. 1989). 4 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 2