Opinion
I.D. No. 0211004653.
Submitted: June 17, 2005.
Decided: June 22, 2005.
Upon Defendant's Motion for Review of Sentence. Granted in part; denied in part.
Dennis Kelleher, Esquire, Department of Justice, Dover, Delaware; attorneys for the State of Delaware.
Benjamin A. Schwartz, Esquire of Schwartz Schwartz, Dover, Delaware; attorneys for the Defendant.
ORDER
Before this Court is Defendant Courtney Barnes' motion for review of sentence. Defendant Barnes was convicted and sentenced in 2003 for both Aggravated Menacing and Robbery First Degree. Defendant has filed a motion to vacate his aggravated menacing conviction. The State concurs that Aggravated Menacing is a lesser-included offense of Robbery First Degree but requests this Court to increase his robbery sentence by one year. Defendant contends that any increase in sentence would violate his double jeopardy rights resulting in an illegal sentence.
Defendant was also convicted of Possession of a Firearm During the Commission of a Felony, Wearing a Disguise During the Commission of a Felony, and Conspiracy Second Degree.
As a preliminary matter, Defendant's motion should have been filed as a Rule 61 Motion and not a Rule 35 motion. Considering that this motion was originally filed as a pro se motion, this Court will treat Defendant's motion for a reduction in sentence as though it was properly filed as a Rule 61 motion for postconviction relief. The Delaware Supreme Court in Poteat v. State concluded that the crime of Aggravated Menacing is a lesser-included offense of Robbery in the First Degree. Therefore, sentencing a defendant separately for both aggravated menacing and robbery in the first degree violates his Fifth Amendment protection against double jeopardy. Accordingly, Defendant's conviction and sentencing for aggravated menacing must be vacated.
840 A.2d 599 (Del. 2003).
Id. at 606.
Id. at 606.
The remaining issue is whether this Court will increase the robbery sentence imposed upon Defendant. Double jeopardy issues arise during re-sentencing when the defendant has already established a legitimate expectation of finality in his sentence. The Supreme Court in White v. State held that a defendant who challenges his convictions on double jeopardy grounds has no legitimate expectation of finality in his original sentence. After a related sentence has been vacated on appeal, a trial judge may re-sentence a defendant up to the combined duration of the original sentence without violating the constitutional prohibition against double jeopardy. This Court believes it has the full authority to increase Defendant's original sentence for his Robbery in the First Degree conviction by one year. However, in exercising its discretion, this Court will refrain from doing so.
576 A.2d 1322 (Del. 1990).
Id. at 1328.
Id.
Therefore, it is hereby ordered that Defendant's conviction and sentence for aggravated menacing be vacated. The remaining additional relief sought by both parties is hereby denied.
IT IS SO ORDERED.