Opinion
No. 555, 1998.
January 11, 1999.
PETITION DISMISSED.
Unpublished Opinion is below.
IN THE MATTER OF THE PETITION OF LAWRENCE WHALEN FOR A WRIT OF PROHIBITION. No. 555, 1998. In the Supreme Court of the State of Delaware. Submitted: December 31, 1998. Decided: January 11, 1999.
Before HOLLAND, HARTNETT, and BERGER, Justices.
ORDER
This 11th day of January 1999, upon consideration of the petition of Lawrence Whalen ("Whalen") for a writ of prohibition, it appears to the Court that:
(1) The Superior Court docket reflects that on October 13, 1998, Whalen was indicted on one count of Continuous Sexual Abuse of a Child, in violation of 11 Del. C. § 778. State v. Lawrence P. Whalen, Del. Super. Ct., Cr. A. No. IS98-10-0286. An Assistant Public Defender is representing Whalen in the Superior Court. Whalen's trial is scheduled to begin on January 25, 1999. The Superior Court has denied Whalen's motion for the appointment of new counsel.
(2) In his pro se petition in this Court, Whalen contends that the Superior Court is without jurisdiction to "mandat[e] representation to be from the Office of the Public Defenders' Office." Whalen requests that this Court "review the appointment of counsel from the Office of Public Defender, which clearly shows a conflict of interest."
3) The purpose of a writ of prohibition is to restrain a lower court from exceeding the limits of its jurisdiction. In re Hovey, Del. Supr., 545 A.2d 626, 628 (1988). "[A] writ of prohibition may lie where the lower court has lost jurisdiction . . . by reason of violation of a defendant's fundamental constitutional rights, provided that there is no other adequate legal remedy." Steigler v. Superior Court, Del. Supr., 252 A.2d 300, 303 (1969). "The right to appeal a criminal conviction is generally considered a complete and adequate remedy to review all of the questions presented in a criminal proceeding," unless the lack of jurisdiction of the lower court is "clear and unmistakable." In re Hovey, 545 A.2d at 629.
4) Whalen has not sustained his burden of demonstrating to this Court by clear and convincing evidence that the Superior Court is without jurisdiction to conduct his trial. Whalen has been indicted by a grand jury on a charge over which the Superior Court has jurisdiction. Whalen appears to have an adequate remedy at law for consideration of the claim he has advanced in his petition for a writ of prohibition. Whalen has raised the claim in the Superior Court. If convicted, Whalen may reassert his claim on direct appeal. The availability of an adequate remedy at law requires the dismissal of Whalen's petition.
NOW, THEREFORE, IT IS ORDERED that Whalen's petition for a writ of prohibition is DISMISSED. The mandate shall issue forthwith.
BY THE COURT:
/s/ Randy J. Holland, Justice