Opinion
No. 431, 1998.
Decided: December 16, 1998.
Superior (Kent) CrA K94-01-0082 -0086 and K94-01-0265.
Appeal Dismissed.
Unpublished Opinion is below.
CHARLES B. SANDERS, JR., Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 431, 1998. In the Supreme Court of the State of Delaware. Submitted: November 30, 1998. Decided: December 16, 1998.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
This 16th day of December 1998, it appears to the Court that:
(1) On September 17, 1998, the defendant-appellant, Charles B. Sanders, Jr. ("Sanders"), filed a document in the Superior Court entitled "Motion for a Direct Reversal Notwithstanding the Commissioner's Pending Recommendations." Sanders' motion raised issues that were previously raised in Sanders' motion for postconviction relief that is currently pending before a Commissioner in the Superior Court. By order dated September 21, 1998, the Superior Court denied Sanders' "Motion for a Direct Reversal Notwithstanding Commissioner's Pending Recommendations" as "procedurally barred and without merit." This appeal followed.
(2) The State has filed a motion to affirm contending that Sanders' "Motion for Direct Reversal Notwithstanding the Commissioner's Pending Recommendations," while not cognizable under the Rules of the Superior Court or this Court, is in effect, a motion for postconviction relief under Superior Court Criminal Rule 61 ("Rule 61"). The State argues that the Superior Court's denial of Sanders' motion should be viewed as a final order denying postconviction relief and should be affirmed. We disagree.
(3) It is not clear that the Superior Court's order of September 21, 1998, was intended to be a final order under Rule 61. Rather, it appears from the record that the underlying motion for postconviction relief in this matter was referred on March 18, 1998, to a Superior Court Commissioner for proposed findings and recommendations. The motion for postconviction relief has been at-issue before the Commissioner since July 16, 1998. See 10 Del. C. § 512 and Super. Ct. Crim. R. 62. Sanders' "Motion for a Direct Reversal Notwithstanding the Commissioner's Pending Recommendations" was an improper attempt by Sanders to circumvent the Superior Court's referral of the postconviction motion to the Commissioner. The motion properly was denied by the Superior Court in its order of September 21, 1998.
(4) It is well-settled that this Court does not have jurisdiction to hear an interlocutory appeal in a criminal case. State v. Cooley, Del. Supr., 430 A.2d 789 (1981). Only a final order in a criminal case is reviewable by this Court. Rash v. State, Del. Supr., 318 A.2d 603 (1974).
(5) The Court finds that this appeal should be dismissed based on this Court's lack of jurisdiction to entertain a criminal interlocutory appeal. The Court concludes, pursuant to Supreme Court Rule 29(c), that the within criminal interlocutory appeal, on its face, manifestly fails to invoke the Court's jurisdiction, and that the giving of notice of said defect would serve no meaningful purpose and that any response would be of no avail.
(6) This appeal marks the second time Sanders has attempted to file an impermissible criminal interlocutory appeal before the entry of a final order on his pending postconviction motion. See Sanders v. State, Del. Supr., No. 148, 1998, Berger, J. 1998 WL 255390 (April 16, 1998) (ORDER) (dismissing appeal from denial of motion to recuse). The Rules of this Court provide that a notice of appeal shall be filed in the Office of the Clerk of this Court "within thirty days after entry upon the docket of a judgment or order in any proceeding for postconviction relief." Supr. Ct. R. 6. Sanders is advised that the thirty-day time period in which to file an appeal in this case will start when the Superior Court enters a final order on Sanders' pending motion for postconviction relief.
NOW, THEREFORE, IT IS HEREBY ORDERED that the appeal is DISMISSED, sua sponte, pursuant to Supreme Court Rule 29(c), for lack of jurisdiction. It is further ORDERED that, in the absence of a specific direction of a Justice of this Court, the Clerk shall not docket any further appeals which are filed by Charles B. Sanders, Jr., in this case, other than a notice of appeal from a final judgment of the Superior Court entered in Cr. A. Nos. K94-01-0082 thru 0086 K94-01-0265.