Opinion
No. 39, 2002
Submitted: June 21, 2002
Decided: August 9, 2002
Court Below Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN95-03-1911, -1913, -1915, -1917, -1919, and -1922 Cr. ID No. 9503009839.
Remanded.
Unpublished opinion is below.
CHARLES D. HONAKER, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 39, 2002 In the Supreme Court of the State of Delaware. Submitted: June 21, 2002 Decided: August 9, 2002
Before VEASEY, Chief Justice, BERGER, and STEELE, Justices.
MYRON T. STEELE, Justice.
ORDER
This 9th day of August 2002, upon consideration of the parties' briefs and the record below, it appears to the Court that:
(1) The defendant-appellant, Charles Honaker, filed this appeal from the Superior Court's denial of his motion for modification of sentence. In his opening brief on appeal, Honaker raises two contentions. First, Honaker contends that the Superior Court violated double jeopardy principles when it reimposed a sentence for violation of probation (VOP) that previously had been discharged as served. Second, Honaker asserts that the August 2001 VOP proceedings did not comport with due process requirements because he was not afforded a preliminary hearing prior to the VOP hearing.
(2) The State agrees that, in July 1999, the Superior Court discharged Honaker's sentence in Cr.A. No. IN95-03-1919 as served. The State further notes that the Superior Court, in a VOP proceeding in February 2000, reimposed the sentence in Cr.A. No. IN95-03-1919, and Honaker did not appeal from that judgment. Honaker also failed to file an appeal from his August 2001 VOP sentence, which included a sentence for Cr.A. No. IN95-03-1919 of one year at Level V incarceration suspended entirely for one year at Level IV home confinement suspended after serving six months for six months at Level III probation.
(3) Although Honaker failed to raise this issue earlier, the State nonetheless concedes that the Superior Court's jurisdiction to reimpose a previously discharged sentence is questionable. The State points out that, because the Superior Court denied Honaker's motion to modify without requesting a response, the State has not had an opportunity to present its position to the Superior Court for its consideration. The State therefore requests that the Superior Court's judgment be vacated, in part, and the matter be remanded to the Superior Court for further consideration of this issue. We agree that the Superior Court should reconsider this portion of its judgment after full briefing from both parties on this issue.
(4) With respect to Honaker's second argument, the State points out that the VOP hearing was held within two weeks of Honaker's presentment to a Superior Court Commissioner for a bail hearing. The State contends that the August 2001 VOP proceedings comported with the requirements of Superior Court Criminal Rule 32.1 and that, in the absence of any specific prejudice, which Honaker does not assert, the Superior Court was not required to vacate the VOP sentence because of the lack of a preliminary hearing. Having reviewed the record, we agree that the August 2001 VOP proceedings comported with due process requirements and that Honaker cannot establish any prejudice from the failure to hold a preliminary hearing. Accordingly, we affirm this portion of the Superior Court's judgment.
NOW, THEREFORE, IT IS ORDERED that the Superior Court's judgment is AFFIRMED in part and VACATED in part. This matter is REMANDED for further proceedings consistent with this Order. Jurisdiction is not retained.