Opinion
No. 214, 1999.
June 18, 1999.
Appeal from the New Castle County.
MANDAMUS DISMISSED
Unpublished Opinion is below.
IN THE MATTER OF THE PETITION OF CORNELIUS A. HARLEY FOR A WRIT OF MANDAMUS. No. 214, 1999. Supreme Court of Delaware. Submitted: June 1, 1999. Decided: June 18, 1999.
Before WALSH, HOLLAND, and HARTNETT, Justices.
ORDER
This 18th day of June 1999, upon consideration of the petition of Cornelius A. Harley for a writ of mandamus as well as the response and motion to dismiss filed by the State of Delaware, it appears to the Court that:
(1) Harley filed the present petition requesting this Court to issue an original writ of mandamus directed to the Superior Court. Harley contends that several days before he was due to be released from Level V incarceration into a Level IV treatment program the Superior Court, on April 15, 1999, illegally amended his sentence and ordered that he continue to be held at Level V custody pending space availability in a Level IV facility. Harley contends that he is entitled to be released to a Level IV facility or, alternatively, that he is entitled to be released to Level III probation pending space available at Level IV. We find that Harley's petition manifestly fails to invoke the original jurisdiction of this Court. Accordingly, his petition must be DISMISSED.
(2) This Court may issue a writ of mandamus to compel a lower court to perform a duty. As a condition precedent to the performance of that duty, it must be demonstrated to this Court: that the complainant has a clear right to the performance of the duty; that no other remedy is available; and that the trial court has arbitrarily failed or refused to perform its duty. In re Hyson, Del.Supr., 649 A.2d 807, 808 (1994).
(3) In this case, it is manifest that Harley could have appealed from the Superior Court's April 15, 1999 decision that ordered him to be held at Level V pending space available at Level IV. This Court will not allow a defendant, who clearly has an adequate remedy in the appellate process, to use the extraordinary writ process as a substitute for a timely-filed appeal. See Matushefske v. Herlihy, Del.Supr., 214 A.2d 883, 885 (1965). Accordingly, Harley's petition fails to invoke the original jurisdiction of this Court because he had another adequate remedy available to him, which he failed to pursue.
The record reflects that Harley refused to participate in the required Level IV treatment program. Harley's refusal to participate in drug treatment led to the Superior Court's April 15 decision ordering that he continue to be held at Level V custody. On May 26, 1999, the Superior Court entered another order modifying Harley's sentence to remove the condition that Harley attend a drug treatment program.
NOW, THEREFORE, IT IS ORDERED that the State's motion to dismiss is GRANTED. The petition for a writ of mandamus is DISMISSED.
BY THE COURT:
/s/ Randy J. Holland, Justice