Opinion
I.D. No. 30302253DI.
Submitted: September 6, 2007.
Decided: September 25, 2007.
Richard G. Andrews, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Robert Berry, Smyrna, Delaware, pro se.
ORDER
This 25th day of September, 2007, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
1. On December 1, 1993, the Defendant pleaded guilty to Murder in the 2nd Degree. On January 28, 1994, This Court sentenced the Defendant to a total of twenty years at supervision Level V, suspended after serving ten years for Level II probation. The Defendant was released from prison in 2002, and began serving his probation. On August 31, 2006, This Court found the Defendant in violation of his probation, and sentenced him to four years at supervision Level V, followed by twenty-four months of varying levels of probation.
2. The Defendant filed two motions for modification of the sentence imposed for his violation of probation, both of which This Court denied. The Defendant has an appeal from the sentence pending in the Delaware Supreme Court.
3. The Defendant filed this Superior Court Criminal Rule 61 motion for postconviction relief on September 6, 2007.
4. Superior Court Criminal Rule 61 "governs the procedure on an application . . . seeking to set aside a judgment of conviction." Here, the Defendant attacks the sentence that Court imposed for his violation of probation, not the underlying "judgment of conviction." The Defendant's Rule 61 motion must be summarily dismissed, as it is an inappropriate vehicle for attacking the sentence imposed for his violation of probation.
Super. Ct. Crim. R. 61(a)(1).
In re Motion for Postconviction Relief, 1995 WL 716911, at *1 (Del.Super.Ct. 1995) (holding that "[t]he use of a Rule 61 application to attack the sentence received for a violation of probation is inappropriate").
5. For the reasons stated, Defendant's Motion for Postconviction Relief
is SUMMARILY DISMISSED.
IT IS SO ORDERED.