State v. Harris

Full title: STATE OF DELAWARE, Plaintiff, v. SAMUEL L. HARRIS, Defendant

Court: Superior Court of Delaware, for Kent County

Date published: Apr 30, 2004

Cr. I.D. No.: 9801013999 (Del. Super. Ct. Apr. 30, 2004)

Opinion

Cr. I.D. No.: 9801013999.

Submitted: April 26, 2004.

Decided: April 30, 2004.

Upon consideration of Defendant's Pro Se Motion for Post-Conviction Relief — GRANTED IN PART; DENIED IN PART.

John Williams, Esquire, Sandra W. Dean, Esquire, Samuel L. Harris.

ORDER

SUSAN C. DEL PESCO, Judge.

WHEREAS this 30^th day of April 2004, the defendant having filed a second motion for post-conviction relief, it appears that:

1. On September 14, 1998, Harris was convicted of attempted first degree robbery, aggravated menacing, second degree forgery, and criminal impersonation. After being declared an habitual offender pursuant to the provisions of 11 Del. C. § 4214(a), Harris was sentenced to minimum mandatory terms of twenty years Level V incarceration on the aggravated menacing conviction.¹ Harris filed a pro se motion for post-conviction relief which this Court denied on July 3, 2002.² Thereafter, this Court on September 25, 2003, denied Harris' sentence correction motion, which the Delaware Supreme Court affirmed on January 5, 2004.³ Harris filed a second pro se motion for post-conviction relief with this Court on February 19, 2004.⁴ In this motion and accompanying memorandum of law, Harris asserts three claims: (1) his separate convictions and sentences for attempted first degree robbery and aggravated menacing violate the constitutional double jeopardy protection; (2) attempted first degree robbery is not a crime so Harris is legally innocent; and (3) the Superior Court lacked jurisdiction to convict Harris in 1998 because attempted first degree robbery is not a crime.⁵

1 Harris v. State, 820 A.2d 1242, 1243 (Del. 2004).

2 State v. Harris, Del. Super., Cr.A. Nos. IK98-02-0069R1, IK98-02-0856R1, IK98-02-0072R1, IK98-02-0076R1 (July 3, 2002) (Order), 2002 WL 1603176, aff'd, Harris v. State, Del. Supr., No. 437, 2002 (Dec. 24, 2002) (Order), 2002 WL 31875536.

3 Harris v. State, 840 A.2d 1242 (Del. 2004).

4 Harris v. State, Cr. I.D. No. 9801013999, Motion for Post-Conviction Relief (Feb. 19, 2004).

5 Id.

2. The State recognizes that the Supreme Court decision in Poteat v. State, ⁶ requires that the 1998 conviction for aggravated menacing be vacated since that offense merges with Harris' separate attempted first degree robbery conviction.⁷ That portion of the motion for post-conviction relief is GRANTED.

6 840 A.2d 599 (Del. 2003).

7 Id. at 601, 605.

3. The other contentions of the post-conviction motion are DENIED as untimely, and repetitious.

4. Under the authority of White v. State, ⁸ the Court will schedule the opportunity to hear from the State and the defendant regarding resentencing. The resentencing will occur on Tuesday, June 1, 2004, at 3:15 p.m., in the Superior Court, Kent County Courthouse.

8 576 A.2d 1322, 1328 (Del. 1990).

IT IS SO ORDERED.