TRIBUANI v. State

JOHN A. TRIBUANI, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 346, 2008. Supreme Court of Delaware. Submitted: July 18, 2008. Decided: September 19, 2008. Before BERGER, JACOBS and RIDGELY, Justices. ORDER JACK B. JACOBS, Justice. This 19th day of September 2008, it appears to the Court that: (1) On July 9, 2008, the Court received John A. Tribuani's untimely notice of appeal from a Superior Court postconviction decision docketed on May 8, 2008. Pursuant to Supreme Court Rule 6, a timely notice of appeal should have been filed on or before June 9, 2008.[1] (2) On July 10, 2008, the Clerk issued a notice directing that Tribuani show cause why the appeal should not be dismissed as untimely filed.[2] In his response to the notice to show cause, Tribuani asserts that the prison mail room was responsible for the delay in filing the appeal. (3) This Court has previously considered and refused to create a separate "mailbox rule" for prisoners.[3] Under Delaware law, a notice of appeal must be received by the Office of the Clerk within the applicable time period to be effective.[4] Unless an appellant can demonstrate that the failure to timely file a notice of appeal is attributable to court-related personnel, an untimely appeal cannot be considered.[5] (4) Tribuani does not contend, and the record does not reflect, that his failure to timely file the notice of appeal is attributable to court-related personnel.[6] 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, pursuant to Supreme Court Rule 29(b), that the appeal is DISMISSED. NOTES [1] Del. Supr. Ct. R. 6(a)(iii). [2] Del. Supr. Ct. R. 29(b). [3] Carr v. State, 554 A.2d 778 (Del. 1989). [4] See id. at 779 (stating that "[t]ime is a jurisdictional requirement"); Del. Supr. Ct. R. 10(a). [5] Bey v. State, 402 A.2d 362, 363 (Del. 1979). [6] See Brown v. State, 2004 WL 1535757 (Del. Supr.) (dismissing untimely appeal after concluding that prison law library personnel are not court-related personnel); Deputy v. Roy, 2004 WL 1535479 (Del. Supr.) (dismissing untimely appeal after concluding that delay in prison mail system cannot enlarge jurisdictional appeal period.).