IN THE SUPREME COURT OF THE STATE OF DELAWARE
FREDERICK W. SMITH, JR., §
§
Petitioner Below- § No. 127, 2017
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
JAMES T. VAUGHN CORRECTIONAL §
CENTER EDUCATION § C.A. No. N17C-02-209
DEPARTMENT, §
§
Respondent Below- §
Appellee. §
Submitted: May 25, 2017
Decided: June 15, 2017
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
This 15th day of June 2017, it appears to the Court that:
(1) The appellant, Frederick T. Smith, filed this appeal from a
Superior Court order dismissing his complaint for failure to state a claim and
denying his motion to proceed in forma pauperis. On May 2, 2017, the
Superior Court informed the Clerk of this Court that Smith had failed to pay
the required record preparation fee. The Senior Court Clerk directed Smith
to pay the fee by May 17, 2017 or else a notice to show cause would be
issued.
(2) Smith failed to pay the fee. On May 18, 2017, the Chief
Deputy Clerk issued a notice to Smith to show cause why his appeal should
not be dismissed for his failure to diligently prosecute the appeal by failing
to pay the Superior Court’s record preparation fee.
(3) Smith responded to the rule to show cause on May 25, 2017.
He argues that the Superior Court has no jurisdiction to demand payment
from him while his case is pending appeal.
(4) Smith is incorrect. Under Supreme Court Rule 9(aa), “[e]very
appellant is required to pay the record preparation and transmittal fee within
the time limit imposed by the trial court unless the trial court waives its
fee….”1 If the appellant fails to pay the record preparation fee, this Court
may dismiss the appeal.2 The Superior Court did not waive the fee, and
Smith failed to pay it. The Court cannot proceed without the record on
appeal.
NOW, THEREFORE, IT IS ORDERED that the within appeal is
DISMISSED for Smith’s failure to prosecute.
BY THE COURT:
/s/ Karen L. Valihura
Justice
1
Del. Supr. Ct. R. 9(aa).
2
Id.
2