Resop v. State

• Court: Supreme Court of Delaware
• Decided: April 27, 2017
• Docket: 130, 2017
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

RYAN RESOP, § § No. 130, 2017 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 0701010111 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: April 6, 2017 Decided: April 27, 2017

Before STRINE, Chief Justice, VAUGHN, and SEITZ, Justices.

ORDER

This 27th day of April 2017, it appears to the Court that:

(1) On March 21, 2017, the Court received Ryan Resop’s notice of appeal

from a Superior Court order dated and docketed on February 15, 2017, denying his

motion for postconviction relief. Under Supreme Court Rule 6, a timely notice of

appeal should have been filed on or before March 17, 2017.

(2) On March 21, 2017, the Clerk issued a notice directing Resop to show

cause why the appeal should not be dismissed as untimely filed. In response to

the notice, Resop contends that the appeal is timely because he filed it within thirty days of February 19, 2017, the date he received the February 15 order. Resop’s

contention is unavailing.

(3) Under Rule 6(a)(iv), an appeal in any proceeding for postconviction

relief must be filed within thirty days after entry upon the docket of the judgment

or order being appealed.1 The jurisdiction of the Court rests upon the appeal being

filed within the thirty day period fixed by law.2 The Court cannot consider an

untimely appeal unless the appellant can demonstrate that the failure to file a

timely notice of appeal is attributable to court-related personnel.3

(4) Because the order in this case was entered upon the docket on

February 15, the appeal was due on or before March 17. Resop did not file the

notice of appeal until March 21. He has not demonstrated that his failure to file a

timely appeal was due to court-related personnel. Under these circumstances, the

Court concludes that the appeal must be dismissed.

NOW, THEREFORE, IT IS ORDERED that the appeal is DISMISSED.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Justice

1 Del. Supr. Ct. R. 6(a)(iv) (providing that a notice of appeal from an order in a postconviction proceeding must be filed within thirty days after entry upon the docket of the order from which the appeal is taken). 2 Carr v. State, 554 A.2d 778, 779 (Del. 1989). 3 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 2