Hall v. State

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

GIBSON A. HALL, § § Defendant Below, § No. 457, 2016 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 88004234DI § Plaintiff Below, § Appellee. §

Submitted: September 20, 2016 Decided: September 29, 2016

Before VALIHURA, VAUGHN, and SEITZ, Justices.

ORDER

This 29th day of September 2016, it appears to the Court that:

(1) On September 7, 2016, the Court received the appellant’s notice of

appeal from a Superior Court order denying his motion for correction of sentence.

The Superior Court order was dated August 1, 2016 and docketed on August 2,

2016. Under Supreme Court Rule 6(a)(iv), a timely notice of appeal should have

been filed on or before September 1, 2016.

(2) 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 argues that

the appeal should be considered timely because the notice of appeal was mailed on August 20, 2016 or August 23, 2016, well before the expiration of the deadline for

a timely appeal. On September 23, 2016, the appellant filed a motion for inclusion

of the docket in this appeal because the docket stated that the notice of appeal was

served by mail on August 19, 2016. According to the appellant, this means court-

related personnel must be responsible for the delay in the filing of his 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) Contrary to the appellant’s contention, the served by mail notation on

the docket reflects the date that the appellant put on the certificate of service

(August 19, 2016), not the date on which the Office of the Clerk actually received

his notice of appeal. The appellant’s notice of appeal bears a clocked in date of

September 7, 2016, the date on which the Office of the Clerk received the notice of

appeal. The appellant has not shown that the delay in the filing of his appeal was

1 Carr v. State, 554 A.2d 778, 779 (Del. 1989). 2 Supr. Ct. R. 10 (a); Smith v. State, 47 A.3d 481, 482 (Del. 2012). 3 Carter v. State, 2013 WL 5974913, at *1 (Del. Nov. 8, 2013) (citing Carr, 554 A.2d at 779). 4 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 2 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. This appeal must be dismissed.

(5) Even if we were to reach the merits of this appeal, we would dismiss

it summarily for lack of merit. The Superior Court correctly found in its August 1,

2016 order that appellant’s motion is not ripe and without merit because appellant

must serve his sentence for Murder First Degree before the sentence starts to run

on his deadly weapon possession conviction. Further, appellant has previously

litigated and lost before this Court on his claim that his sentence violates double

jeopardy, and cannot relitigate the issue in the present motion.

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

that this appeal is DISMISSED.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice