Opinion
I.D. No. 0208020744.
Submitted: November 18, 2008.
Decided: December 4, 2008.
Upon Defendant's Motion to Proceed in Forma Pauperis, Third Motion for Postconviction Relief, Motion to Amend, and Motion to Modify/Amend Sentence.
DISMISSED.
This 4th day of December, 2008, it appears to the Court that:
1. On July 29, 2003, Defendant Kevin McCray ("McCray") pled guilty to three counts of Robbery in the First Degree and one count of Possession of a Deadly Weapon During the Commission of a Felony. Subsequently, McCray was sentenced to eighteen years of imprisonment at Level V.
2. McCray has filed multiple letters and motions challenging his conviction and sentence. On October 3, 2008, this Court denied motions filed by McCray seeking public funds for a psychiatric evaluation and appointment of counsel.
3. Now before the Court are four pro se motions filed by McCray in October and November 2008: (1) a Motion to Proceed In Forma Pauperis, filed on October 15; (2) a third Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61, filed on October 15; (3) a Motion to Amend the Rule 61 Motion for Postconviction Relief, filed on October 27; and (4) a Motion to Modify/Set Aside Sentence, filed on November 18, which seeks a sentence modification contingent on the outcome of McCray's Rule 61 postconviction motion.
4. On October 28, 2008, McCray filed an appeal to the Delaware Supreme Court from this Court's order of October 3, 2008, denying his request for a psychiatric evaluation and appointment of counsel.
5. This Court lacks jurisdiction to consider McCray's other motions while his timely appeal from the Court's October 3, 2008, order is pending. Because the motions pending before the Court could be affected by the outcome of McCray's appeal, they are not collateral to or independent of the appeal, and therefore this Court cannot exercise concurrent jurisdiction. McCray remains free to refile his motions after the conclusion of his appeal. Accordingly, McCray's Motion to Proceed In Forma Pauperis, Motion for Postconviction Relief, Motion to Amend, and Motion to Modify/Set Aside Sentence are DISMISSED without prejudice.
See State v. Ryons, 2001 WL1456676 (Del.Super. July 14, 2001) (holding that the perfection of a direct appeal divests Superior Court of jurisdiction to consider a Rule 61 motion for postconviction relief).
See id. at *1.
Original to Prothonotary cc: Kevin McCray