Opinion
ID. No. 0403012959.
Submitted: September 12, 2007.
Decided: September 25, 2007.
Upon Defendant's Motion for Postconviction Relief., SUMMARILY DISMISSED.
Shawn E. Martyniak, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Marcus J. Johnson, Smyrna, Delaware, pro se.
ORDER
This 25th day of September, 2007, upon consideration of Defendant's second motion for postconviction relief, it appears to the Court that:
1. On October 5, 2005, a jury found the Defendant guilty of Trafficking Cocaine; Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance ("PWID"); Use of a Vehicle for Keeping a Controlled Substance; Possession of Drug Paraphernalia; Driving While License is Suspended and/or Revoked; and Displaying an Expired Temporary Registration Plate.
2. The Court sentenced Defendant on May 19, 2006 to three years at Level V on the PWID charge, two years at Level V on the trafficking charge, and probation on the remaining charges. The Supreme Court affirmed his conviction on December 22, 2006.
Johnson v. State, 2006 WL 3759403, at *1 (Del.Supr.) (finding "no merit" to Defendant's appeal).
3. The Defendant filed a pro se motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") on January 16, 2007. He subsequently amended his motion on January 22 and again on January 29. This Court denied the motion on July 5, 2007.
3. On July 17, 2007, the Defendant filed a motion for reargument of his motion for postconviction relief. This Court denied the motion for reargument on July 23, 2007. The Defendant appealed from this ruling on July 27, 2007.
4. On September 5, 2007 the Defendant filed this, his second pro se motion for postconviction relief, at a time when the July 27, 2007 appeal relating to his first motion for postconviction relief was still pending.
5. This Court now summarily dismisses as premature Defendant's second motion for postconviction relief under Rule 61(a)(4). Rule 61(a)(4) provides that a motion for postconviction relief may not be filed until "the judgment of conviction is final." The Delaware Supreme Court held in Carter v. State that "[i]t is well settled that a criminal conviction in Delaware from which an appeal is filed is not final until the mandate on appeal issues from the Supreme Court." The Carter Court then held that a defendant's motion for postconviction relief was premature under Superior Court Rule 61(a)(4), because an appeal from the convictions were pending. The Defendant has similarly filed a motion for postconviction relief while his appeal from his convictions are pending. Accordingly, the Defendant's postconviction motion is premature under Superior Court Criminal Rule 61(a)(4), because his convictions are not yet "final."
Super. Ct.Crim. R. 61(a)(4).
Carter v. State, 2005 WL 1175938, at *1 (Del.Supr.) (citing Jackson v. State, 654 A.2d 829 (Del. 1995)).
Id., at *1
6. For the reasons stated, Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED.
IT IS SO ORDERED.