Opinion
No. 546, 2002.
Submitted: October 16, 2002.
Decided: November 13, 2002.
Mandamus dismissed.
Unpublished opinion is below.
IN THE MATTER OF THE PETITION OF EDWARD GIBBS FOR A WRIT OF MANDAMUS No. 546, 2002 Supreme Court of Delaware. Submitted: October 16, 2002 Decided: November 13, 2002
Before WALSH, HOLLAND and BERGER, Justices
Randy J. Holland Justice
ORDER
This 13th day of November 2002, it appears to the Court that:
(1) The petitioner, Edward Gibbs, seeks to invoke this Court's original jurisdiction to issue an extraordinary writ of mandamus to compel the Department of Correction to apply additional good time credits to his prison sentence. The State of Delaware, as the real party in interest, has filed an answer requesting that Gibbs' petition be dismissed. We find that Gibbs' petition manifestly fails to invoke the original jurisdiction of this Court. Accordingly, the petition must be DISMISSED.
DEL. CONST. art. IV, § 11( 6); SUPR.CT.R. 43.
(2) In December 1988, Gibbs pleaded guilty to one count of Unlawful Sexual Intercourse in the Third Degree and was sentenced to 15 years incarceration at Level V, to be suspended after 5 years for probation.
In June 1999, the Superior Court found that Gibbs had committed a violation of probation ("VOP"). On appeal, this Court reversed and remanded the matter for a new VOP hearing. At the hearing, Gibbs was again found to be in violation of his probation and, on appeal, this Court affirmed the judgment of the Superior Court.
This was the latest of several VOP's committed by Gibbs between 1989 and 1999.
Gibbs v. State, 760 A.2d 541 (Del. 2000).
Gibbs v. State, Del. Supr., No. 554, 2000, Veasey, C.J. (July 30, 2001).
(3) In July 2002, Gibbs filed a petition for a writ of mandamus in the Superior Court to compel the Department of Correction to apply additional good time credits to his prison sentence. The Superior Court denied the petition without prejudice and denied Gibbs' subsequent motion for reargument. Gibbs did not appeal from the orders of the Superior Court.
(4) A writ of mandamus is an extraordinary remedy issued by this Court to compel a trial court to perform a duty. As a condition precedent to the issuance of the writ, Gibbs must demonstrate that: a) he has a clear right to the performance of the duty; b) no other adequate remedy is available; and c) the trial court has arbitrarily failed or refused to perform its duty. This Court's original jurisdiction to issue a writ of mandamus is limited to instances where the respondent is a court or a judge thereof. Furthermore, a petition for a writ of mandamus can not be used as a substitute for a timely-filed appeal.
In re Bordley, 545 A.2d 619, 620 (Del. 1988).
Id.
In re Hitchens, 600 A.2d 37, 38 (Del. 1991).
Matushefske v. Herlihy, 214 A.2d 883, 885 (Del. 1965).
(5) There is no basis for the issuance of a writ of mandamus in this case. To the extent Gibbs seeks to compel the Department of Correction to apply additional good time credits to his sentence, his petition must be dismissed for lack of jurisdiction since he seeks relief against a party that is neither a court nor a judge. To the extent Gibbs seeks an order from this Court compelling the Superior Court to issue a writ of mandamus, his petition must be dismissed since he had an opportunity to appeal the Superior Court's denial of his petition for a writ of mandamus, but did not do so.
NOW, THEREFORE, IT IS ORDERED that the State's motion to dismiss is GRANTED. Gibbs' petition for a writ of mandamus is DISMISSED.