Opinion
No. 529, 2001
Decided: March 12, 2002
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr. ID No. 90009287DI.
Affirmed.
Unpublished opinion is below.
JOSEPH A. WITTROCK, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 529, 2001 In the Supreme Court of the State of Delaware. Submitted: February 8, 2002 Decided: March 12, 2002
Before VEASEY, Chief Justice, WALSH, and STEELE, Justices.
E. NORMAN VEASEY, Chief Justice.
ORDER
This 12th day of March 2002, upon consideration of the parties' briefs and the record below, it appears to the Court that:
(1) The defendant-appellant, Joseph Wittrock, filed this appeal from the Superior Court's denial of his second motion for postconviction relief. The Superior Court held that Wittrock's claims were procedurally barred by the three-year time limitation in Superior Court Criminal Rule 61(i)(1). The Superior Court also found Wittrock's claims to be barred under Rule 61(i)(2) because he had failed to raise his claims in his first postconviction motion. We agree.
Accordingly, we AFFIRM the Superior Court's judgment.
(2) Rule 61(i)(1) provides that a postconviction motion "may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized." Wittrock's convictions became final following his direct appeal in July 1993.
See Super. Ct. Crim. R. 61(i)(1).
Wittrock v. State, 1993 WL 307616 (Del.).
Wittrock filed his latest petition in March 2001, more than seven years after his convictions became final. His petition did not assert any newly recognized right nor did it raise any colorable claim that there was a miscarriage of justice.
Therefore, the Superior Court did not err in finding that Rule 61(i)(1) precluded consideration of his claims. Furthermore, Wittrock failed to raise his present claims in his first postconviction petition. The Superior Court was correct in holding that Wittrock's claims also were barred as repetitive under Rule 61(i)(2) and that consideration of his claims was not warranted in the interest of justice.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.