Opinion
Def. ID# 0008014714.
Date Submitted: March 7, 2002.
May 1, 2002.
Kevin L. Cannon, Georgetown, DE.
Dear Mr. Cannon:
Defendant Kevin L. Cannon ("defendant") has filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This is the Court's decision denying the motion.
Defendant was arrested on several charges, including trafficking in cocaine, on August 18, 2000. At a preliminary hearing in the Court of Common Pleas ("CCP") held on September 7, 2000, CCP found there was no probable cause for the trafficking in cocaine charge.
On September 11, 2000, the Grand Jury indicted defendant on numerous drug-related charges, including trafficking in cocaine.
On November 27, 2000, defendant, voluntarily and knowingly, entered into a plea of guilty to a charge of trafficking in cocaine. The remaining charges were nolle prossed. The Court sentenced defendant on that date. Defendant did not file an appeal therefrom.
On February 6, 2002, defendant filed the pending Rule 61 motion. Therein, he advances several grounds for relief. The first is that the indictment was defective because of CCP's ruling there was no probable cause for the charge of trafficking in cocaine. The second is that CCP erred when it ruled that there was no probable cause and then gave the State of Delaware ("the State") the opportunity to indict. The third is the search was pretextual and the evidence seized should have been suppressed.
Defendant waived the right to raise these issues when he entered into the plea of guilty. Smallwood v. State, 599 A.2d 414 (Del. 1991); Fullman v. State, 560 A.2d 490 (Del. 1989); Hickman v. State, Del. Supr., No. 298, 1994, Veasey, C.J. (October 11, 1994); Palmer v. State, Del. Supr., No. 68, 1994, Moore, J. (May 5, 1994) Thus, they are barred.
However, I take this opportunity to educate defendant regarding procedure.
The Grand Jury ruled there was probable cause for the charge of trafficking in cocaine. That ruling rendered CCP's ruling on probable cause irrelevant since a Grand Jury's indictment constitutes probable cause that defendant had committed the offense of trafficking in cocaine. Moore v. State, Del. Supr., No. 286, 2001, Berger, J. (January 28, 2002). Furthermore, contrary to defendant's belief, CCP did not send the matter to the Grand Jury. Once CCP rendered its ruling on probable cause, it no longer had jurisdiction over the case. The State took the matter to the Grand Jury, and the Grand Jury found probable cause.
For the foregoing reasons, defendant's motion is dismissed.
IT IS SO ORDERED.