Summary
dismissing petition for writ of mandamus in part for petitioner's failure to avail himself of his right to appeal from the denial of his motion for correction of sentence
Summary of this case from In re WhiteOpinion
No. 560, 2002
Submitted: October 30, 2002
Decided: November 25, 2002
FOR A WRIT OF MANDAMUS.
Mandamus dismissed.
Unpublished opinion is below.
IN THE MATTER OF THE PETITION OF KEVIN FOREHAND No. 560, 2002 In the Supreme Court of the State of Delaware. Submitted: October 30, 2002 Decided: November 25, 2002
Before HOLLAND, BERGER, and STEELE, Justices.
Carolyn Berger, Justice
ORDER
This 25th day of November 2002, upon consideration of the petition of Kevin Forehand for a writ of mandamus, as well as the State's answer and motion to dismiss, it appears to the Court that:
(1) The petitioner, Kevin Forehand, seeks to invoke the original jurisdiction of this Court by requesting that a writ of mandamus be issued to the Superior Court in order to correct his sentence to give him credit for time he spent in the boot camp diversion program. The State has filed a motion to dismiss. The Court has reviewed the parties' respective positions carefully.
We find that Forehand's petition manifestly fails to invoke the original jurisdiction of this Court. Accordingly, the petition must be DISMISSED.
(2) The record reflects that Forehand pled guilty in 1995 to a drug possession charge and received a three year sentence, which was suspended entirely for probation. In November 1999, Forehand pled guilty to trafficking in cocaine. The Superior Court sentenced him to three years imprisonment but diverted him to the boot camp program pursuant to DEL. CODE ANN. tit. 11, § 6712. In September 2001, the Superior Court found Forehand in violation of the terms of both of his probationary sentences and sentenced him to serve three years in prison followed by probation. We affirmed that judgment on appeal.
Forehand v. State, 2002 WL 480935 (Del. Mar. 22, 2002).
Thereafter, Forehand filed several unsuccessful motions seeking correction of his sentence. He did not appeal the Superior Court's denial of those motions.
(3) This Court has authority to issue a writ of mandamus only when the petitioner can demonstrate a clear right to the performance of a duty, no other adequate remedy is available, and the trial court arbitrarily has failed or refused to perform its duty. An extraordinary writ will not be issued if the petitioner has another adequate and complete remedy at law to correct the act of the trial court that is alleged to be erroneous. A petitioner who has an adequate remedy in the appellate process may not use the extraordinary writ process as a substitute for a properly filed appeal.
In re Bordley, 545 A.2d 619, 620 (Del. 1988).
Canaday v. Superior Court, 116 A.2d 678, 682 (Del. 1955).
See Matushefske v. Herlihy, 214 A.2d 883, 885 (Del. 1965).
(4) In this case, it is manifest that Forehand could have appealed from the Superior Court's denial of his motions for correction of sentence. He did not. Forehand clearly had an adequate remedy in the appellate process, but he failed to avail himself of that process. Forehand may not invoke the Court's extraordinary writ process as a substitute for his failure to file a timely appeal. Moreover, Forehand cannot establish a clear legal right to the relief sought.
See In re Barbee, 693 A.2d 317, 319 (Del. 1997).
Pursuant to the boot camp statute, the Superior Court is required to impose a defendant's entire deferred sentence upon a finding of a violation of probation, and no credit may be given for any time spent in boot camp.
NOW, THEREFORE, IT IS ORDERED that the State's motion to dismiss is GRANTED. The petition for a writ of mandamus is DISMISSED.