Roy v. State

• Court: Supreme Court of Delaware
• Decided: June 27, 2014
• Docket: 211, 2014
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN A. ROY, § § No. 211, 2014 Defendant Below, § Appellant, § Court Below–Superior Court of § the State of Delaware in and for v. § New Castle County § STATE OF DELAWARE, § § Plaintiff Below, § Cr. ID No. 0503015173 Appellee. §

Submitted: May 15, 2014 Decided: June 27, 2014

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

ORDER

This 27th day of June 2014, it appears to the Court that:

(1) On April 28, 2014, the Court received Kevin A. Roy’s notice of

appeal from the Superior Court’s order dated March 24, 2014 and docketed on

March 26, 2014 denying Roy’s motion for postconviction relief. Pursuant to

Supreme Court Rule 6(a)(iii), the notice of appeal should have been filed on or

before April 25, 2014.1

(2) On April 29, 2014, the Clerk issued a notice pursuant to Supreme

Court Rule 29(b), directing Roy to show cause why the appeal should not be

1 See Del. Supr. Ct. R. 6(a)(iii) (providing that an appeal from a proceeding for postconviction relief must be filed within thirty days after entry upon the docket of the judgment or order). dismissed as untimely filed. In his response to the notice filed on May 9, 2014,

Roy asserts that the delay in filing the appeal was due to the law library, business

office and mail system in the prison where he is incarcerated. In a “motion to

amend notice of appeal” filed on May 15, 2014, Roy appears to request an

extension of time to file an “amended” response to the notice to show cause on the

basis that the ten-day response period left him without sufficient time to “seek case

law or any precedent to support his reasons for missing the deadline.”

(3) Under Delaware law, “[t]ime is a jurisdictional requirement.”2 A

notice of appeal must be received by the Office of the Clerk within the time period

to be effective.3 An untimely appeal cannot be considered unless an appellant can

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

court-related personnel.4

(4) In this case, Roy has not demonstrated good cause for an extension of

time to file an amended response to the notice to show cause. Roy does not

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

appeal is attributable to court personnel.5 Consequently, this case does not fall

2 Carr v. State, 554 A.2d 778, 779 (Del. 1989). 3 Del. Supr. Ct. R. 10(a). 4 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 5 See Zuppo v. State, 2011 WL 761523 (Del. March 3, 2011) (holding that prison personnel are not court personnel).

2 within the exception to the general rule that mandates the timely filing of a notice

of appeal.

NOW, THEREFORE, IT IS ORDERED that the “motion to amend notice of

appeal” is DENIED. Under Supreme Court Rules 6 and 29(b), the appeal is

DISMISSED.

BY THE COURT:

/s/ Henry duPont Ridgely Justice