Opinion
No. 293, 1999.
Decided October 5, 1999.
Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 98M-09-45.
APPEAL DISMISSED.
Unpublished Opinion is below.
LARRY HARRIS, Plaintiff Below-Appellant, v. DEPARTMENT OF CORRECTIONS, ROBERT SNYDER, CATHY GUESSFORD, RECORDS AND ID SUPERVISOR, Defendants Below-Appellees. No. 293, 1999. Supreme Court of Delaware. Submitted September 8, 1999. Decided October 5, 1999.
Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 98M-09-45.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices
Joseph T. Walsh, Justice
ORDER
This 5th day of October 1999, upon consideration of the appellant's opening brief and the appellees' motion to affirm/motion to dismiss, it appears to the Court that:
(1) The plaintiff-appellant, Larry Harris ("Harris"), has filed this appeal from the Superior Court's orders denying his petition for a writ of mandamus and denying reargument. The State of Delaware ("State"), as the real party in interest, has moved to affirm the Superior Court's denial of reargument on the ground that it is manifest on the face of Harris' opening brief that the appeal is without merit. The State also has moved to dismiss the appeal from the Superior Court's denial of mandamus on the ground that the appeal is untimely. We agree. We, therefore, affirm the decision of the Superior Court denying reargument and dismiss the appeal.
Supr. Ct. R. 25(a).
Supr. Ct. R. 6(a) (i).
Harris filed a response to the State's motion. Such a response is not permitted unless specifically requested by the Court. See Supr. Ct. R. 25(a). Accordingly, Harris' response shall be stricken as a non-conforming document. See Supr. Ct. R. 34.
(2) Harris is currently an inmate at the Delaware Correctional Center ("DCC") facility in Smyrna, Delaware. He was sentenced to 10 years in prison at Level V, to be suspended after 9 = years for 6 months at Level IV. Harris has participated in a number of rehabilitative programs at DCC, such as Anger Management, Domestic Violence, Pre-Release Communication, Thresholds and Greentree.
(3) In this appeal, Harris claims the Superior Court abused its discretion when it denied his petition for a writ of mandamus, which requested the Superior Court to direct the Department of Corrections to recalculate his sentence on the basis of "good time" credits for participation in various rehabilitative programs. Harris appeals from the Superior Court's March 26, 1999 order, which denied his petition for a writ of mandamus, and its June 18, 1999 order, which denied his motion for reargument.
(4) Harris' appeal from the Superior Court's March 26, 1999 order is untimely. Although a timely motion for reargument will toll the period for appeal, an untimely motion will not. Harris' motion for reargument was untimely because it was not filed within 5 days of the filing of the Superior Court's March 26, 1999 order. Therefore, it did not toll the 30-day time period for filing an appeal in this Court. Harris' appeal from the Superior Court's March 26, 1999 order was filed on July 6, 1999, clearly well beyond the 30-day deadline. Therefore, the appeal must be dismissed for lack of jurisdiction.
Pinkert v. Wion, Del. Supr., 431 A.2d 1269, 1270 (1981).
The Superior Court's order was entered on the docket on March 26, 1999. Excluding the intervening week-end, the deadline for service and filing of the motion was April 2, 1999. See Super. Ct. R. 6(a). The motion is dated April 8, 1999. The Certificate of Service shows service by mail on that date. Even assuming the motion was filed on that same day, it is beyond the required deadline. Super. Ct. R. 59(e).
Id. at 1270-71.
Eller v. State, Del. Supr., 531 A.2d 951, 953 (1987).
(5) Harris' appeal from the Superior Court's June 18, 1999 order is without merit. Because Harris' motion for reargument was not filed by the required deadline, the Superior Court properly denied the motion as untimely.
Super. Ct. R. 59(e).
(6) It is manifest on the face of Harris' opening brief that the appeal from the Superior Court's June 18, 1999 order is without merit because the issues presented on appeal clearly are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rules 25(a) and 29(b), the State's motion to affirm/motion to dismiss is GRANTED. The June 18, 1999 judgment of the Superior Court is hereby AFFIRMED. The appeal from the March 26, 1999 order of the Superior Court is hereby DISMISSED.