IN THE SUPREME COURT OF THE STATE OF DELAWARE
WAYNE S. O’NEAL, §
§ No. 509, 2018
Defendant Below, §
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID Nos. S1806003326
Plaintiff Below, § and S1210010667
Appellee. §
Submitted: October 19, 2018
Decided: November 19, 2018
Before VAUGHN, SEITZ, and TRAYNOR, Justices.
ORDER
Upon consideration of the notice to show cause, the appellant’s
response, and trial counsel’s reply, it appears to the Court that:
(1) On October 1, 2018, the Court received the appellant Wayne
O’Neal’s pro se notice of appeal from the Superior Court’s orders, entered on
August 21, 2018, sentencing him for his 5th DUI conviction and for violating
the probation associated with his 4th DUI conviction. Under Supreme Court
Rule 6(a)(iii), a timely notice of appeal should have been filed on or before
September 20, 2018.
(2) The Senior Court Clerk issued a notice directing O’Neal to show
cause why his appeal should not be dismissed as untimely.1 O’Neal filed a
response on October 9, 2018, asserting that he calculated the thirty-day appeal
period by counting business days instead of calendar days. The Court directed
O’Neal’s trial counsel in the guilty plea proceedings below to file a reply.
Counsel indicates that he informed O’Neal in writing that, by pleading guilty,
he was waiving his right to appeal, and if O’Neal wanted to appeal, the
Supreme Court rules required that a notice of appeal be filed within 30 days
of sentencing in compliance with Supreme Court Rules 6 and 7.
(3) Time is a jurisdictional requirement.2 A notice of appeal must
be received by the Office of the Clerk of this Court within the applicable time
period to be effective.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 The appellant has not demonstrated
that court-related personnel are responsible for his untimely filing. Thus, the
appeal must be dismissed for lack of jurisdiction.
1
Del. Supr. Ct. R. 29(b).
2
Carr v. State, 554 A.2d 778, 779 (Del.), cert. denied, 493 U.S. 829 (1989).
3
Del. Supr. Ct. R. 10(a).
4
Bey v. State, 402 A.2d 362, 363 (Del. 1979).
2
NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule
29(b), that the appeal is DISMISSED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
3
Order
Combined Opinion