Dixon v. State ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
TROY DIXON, §
§
Defendant Below, § No. 475, 2019
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID. No. 1211005646A (N)
§
Plaintiff Below, §
Appellee. §
Submitted: November 25, 2019
Decided: December 11, 2019
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
After consideration of the notice to show cause and the appellant’s response,
it appears to the Court that:
(1) On November 14, 2019, the appellant, Troy Dixon, filed a notice of
appeal from a June 18, 2019 Superior Court order denying his second motion for
postconviction relief, motion for appointment of counsel, motion for witness
statements, and motion to compel. Under Supreme Court Rule 6, a timely notice of
appeal should have been filed on or before July 18, 2019.
(2) On November 15, 2019, the Clerk issued a notice directing Dixon to
show cause why this appeal should not be dismissed as untimely filed. In response
to the notice to show cause, Dixon states that privately retained counsel represented
him in connection with his motions. Dixon asserts that the untimely filing should
be excused because his counsel did not inform him until November 4, 2019 that the
Superior Court had denied the motions, and counsel “forgot” to file a timely notice
of appeal.
(3) This Court lacks jurisdiction to consider an appeal when the notice of
appeal is not timely filed, unless the appellant can demonstrate that the failure to file
a timely notice of appeal is attributable to court-related personnel.1 The
jurisdictional defect created by the untimely filing of a notice of appeal cannot be
excused “‘in the absence of unusual circumstances which are not attributable to the
appellant or the appellant’s attorney.’”2
(4) The failure to file a timely appeal in this case is not attributable to court-
related personnel. Therefore, the appeal must be dismissed.
NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b),
that the appeal is DISMISSED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
1
Bey v. State, 402 A.2d 362, 363 (Del. 1979).
2
Laws v. State, 2001 WL 463354 (Del. Apr. 27, 2001). See also Riggs v. Riggs, 539 A.2d 163
(Del. 1988) (dismissing an untimely appeal where an error by the appellant’s attorney caused the
untimeliness).
2