Opinion
Def. ID No. 0207017106.
Submitted: November 12, 2003.
Decided: December 8, 2003.
COMMISSIONER'S PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS REGARDING APPEAL.
Carole E.L. Davis, DAG, Dept. of Justice, 114 E. Market St., Georgetown, DE 19947
Eric C. Mooney, Esq., 11 S. Race St., Georgetown, DE 19947
ORDER
1) The State of Delaware ("the State") appealed the above-captioned matter to this Court, seeking the reversal of decisions entered in Justice of the Peace Court No. 14 ("JP Court") and the Court of Common Pleas ("CCP").
2) This Court referred the matter to the Commissioner, who, on December 8, 2003, filed Proposed Findings of Fact and Recommendations Regarding Appeal, a copy of which is attached hereto and incorporated by reference.
3) Therein, the Commissioner found that the State did not meet the certification requirements of 10 Del. C. § 9902(b) and consequently, recommended that the Superior Court dismiss the appeal for lack of jurisdiction.
4) Neither party filed exceptions to the Commissioner's Proposed Findings of Fact and Recommendations Regarding Appeal.
5) This Court has reviewed the matter de novo;
NOW, THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Proposed Findings of Fact and Recommendations dated December 8, 2003.
IT IS ORDERED THIS 9th DAY OF JANUARY, 2004, THAT:
(1) The Court adopts the well-reasoned Commissioner's Proposed Findings of Fact and Recommendations Regarding Appeal;
(2) The Court dismisses the appeal for lack of jurisdiction because the State did not meet the certification requirements of 10 Del. C. § 9902(b).
Pending before the Superior Court is an appeal which the State of Delaware ("the State") has brought seeking the reversal of decisions entered in Justice of the Peace Court No. 14 ("JP Court") and the Court of Common Pleas ("CCP"). This constitutes my proposed findings of fact and recommendations.
The State appealed from the JP Court decision in the matter pursuant to 10 Del. C. § 9902(b). Therein, it is provided in pertinent part:
(b) When any order is entered before trial in any court suppressing or excluding substantial and material evidence, the court, upon certification by the Attorney General that the evidence is essential to the prosecution of the case, shall dismiss the complaint, indictment or information or any count thereof to the proof of which the evidence suppressed or excluded is essential. Upon ordering the complaint, indictment or information or any count thereof dismissed pursuant to the Attorney General's certification, the reasons of the dismissal shall be set forth in the order entered upon the record.
(c) The State shall have an absolute right of appeal to an appellate court from an order entered pursuant to subsection (b) of this section and if the appellate court upon review of the order suppressing evidence shall reverse the dismissal, the defendant may be subjected to trial.
The Supreme Court explained the requisites of this statute inState v. Cooley, 430 A.2d 789, 791 (Del. 1981), as follows:
Subsection (b), § 9902(b), plainly provides for a three-step procedure to be followed when the State elects to perfect an appeal of right; thus:
(1) The Trial Court enters an order adverse to the State "suppressing or excluding substantial and material evidence";
(2) The Attorney General then certifies that the "evidence is essential to the prosecution of the case";
(3) Whereupon, the Court "shall" enter an order dismissing the complaint.
The requisites were reemphasized in State v. Cooley, 473 A.2d 818, 821 (Del.Super. 1983), where the Superior Court stated:
[T]his statute sets out two requirements which must be satisfied before the State may appeal a pretrial suppression order under § 9902(c). They are:
1) that the State must certify to the court that the suppressed evidence is essential to the prosecution of the case; and
2) that the court, acting upon the State's certification that such evidence is essential, must dismiss the action.
Until these two requirements are met, the State has no absolute right of appeal of a pretrial suppression order under § 9902(c).
This legal framework is important to the presentation of the procedural history of the case and the facts set forth below.
On July 21, 2002, defendant Cynthia Niffenegger ("defendant") was arrested on charges of failing to remain in the lane in violation of 21 Del. C. § 4122(1) and driving under the influence in violation of 21 Del. C. § 4177(a). The matter came to trial in JP Court on September 5, 2002. Before the trial began, the JP Court entertained a motion to suppress. After a hearing, at which the arresting officer testified, the Court stated:
And, because she [the arresting officer] did an excellent job, and was honest in saying that really the reason she stopped this vehicle was because the tires were over the fog line, and that's the reason she stopped it, mainly was because of that. And, she didn't see anything that looked like it was not safe. I'm going to have to grant the motion to suppress, because of the officer's honesty. And I applaud her for that.
So, the motion to suppress on the DUI stop is granted. And, the charge of failing to remain in the lane is dismissed.
The transcript of the September 5, 2002, proceedings ends there. There is no reporting of an oral certification by the State that the suppressed evidence was essential to the State's prosecution of the case nor is there any reporting of a ruling by the Court dismissing the action because of said certification. Furthermore, nothing in the record from JP Court and CCP evidences any written motion and order of dismissal complying with 10 Del. C. § 9902(b). See State v. Maxwell, 624 A.2d 926, 928 (Del. 1993) ("Pursuant to 10 Del. C. § 9902(b), a motion to dismiss was filed by the State, which certified that the evidence suppressed was essential to the prosecution of the charges in the indictment.")
The appeal proceeded before CCP without that court addressing the jurisdictional basis for the appeal. CCP ultimately upheld the decision of the JP Court. The State appealed therefrom to this Court.
The Court first must consider the jurisdictional issue since if an appellate court does not have jurisdiction, then it cannot reach the merits of the appeal. State v. Reid, Del. Super., No. K87-11-0079A, Ridgely, P.J. (July 19, 1988).
In this case, there is no written or oral certification by the State that the suppressed evidence is essential to the prosecution of the case nor is there an order of dismissal based on that certification. The failure to specify what evidence was essential to the prosecution of the case is fatal to the appeal.State v. Barton, Del. Super., Def. ID# 0202016952, Bradley, J. (November 21, 2003); State v. Arnold, Del. Super., Def. ID# 0007004667, Bradley, J. (April 11, 2001); State v. Webb, Del. Super., Cr. A. No. 93-07-0000A, Lee, R.J. (December 20, 1994). Consequently, the appeal must be dismissed.
In conclusion, I recommend that the Superior Court dismiss the appeal for lack of jurisdiction because the certification requirements of 10 Del. C. § 9902(b) were not met.