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State v. Curtis5/10/2004
P. Court's decision in James. However, this Court in James did not specifically consider the issue of whether it had jurisdiction to hear the appeal. We now determine that the Court of Common Pleas does not have statutory jurisdiction to hear an appeal of a denial of a motion to withdraw a DUI First Offender's guilty plea when the defendant has not been adjudicated guilty on the plea and sentenced to imprisonment or at least a $100.00 fine.
This decision does not mean that appellant has no procedural means of review of the Justice of the Peace Court's denial of his motion to withdraw his guilty plea. He continues to have available to him the right of a writ of certiorari. The statutory creation of a right of appeal to Court of Common Pleas of a Title 21 conviction did not abrogate a defendant's right to seek a writ of certiorari. On the contrary, 21 Del. C. § 708(b) specifically affords appellants the choice between filing an appeal in this Court or applying for a writ of certiorari in the Superior Court by providing that the taking of an appeal in this Court "shall constitute a waiver ... of the appellant's right to file a writ of certiorari in Superior Court. See 21 Del. C. § 708(b). The statute specifically states that the alternate writ of certiorari is to be filed in the Superior Court. This is because the Court of Common Pleas lacks jurisdiction to issue a writ of certiorari to a lower court. Brandywine Apartments Assocs. v. Justice of the Peace Court, 1999 WL 33255921 at *2 (Del.Com.Pl.) ("the Court of Common Pleas has neither constitutional or statutory authority to issue a writ of certiorari").
It is important to note that when an appeal to this Court is available, the Superior Court may refuse to entertain a writ of certiorari due to lack of jurisdiction. See Wilkins v. The Court of the Justice of the Peace, 1998 WL 281243 (Del.Super.Ct.). However, since the defendant has no right of appeal to this Court where no conviction has been entered below, a writ of certiorari to the Superior Court may lie since there is "no other available basis for review." Wilkins, supra, at *2 (citing Desantis v. Shahan, 1995 WL 339175 at *2 (Del .Super.Ct.)).
Conclusion
In the case before the Court, defendant sought to appeal the denial of a motion to withdraw a DUI First Offender's guilty plea entered in the court below. However, defendant has not been adjudicated guilty on his guilty plea, and thus has yet to be convicted of DUI and sentenced. This Court has jurisdiction to hear an appeal of a Title 21 matter only if it results in a conviction and sentence thereon of imprisonment or fine of greater than $100.00, which has not occurred. Lacking an appealable conviction, the denial of the motion to withdraw may only be reviewed by writ of certiorari to the Superior Court. Thus, the State's motion to dismiss Curtis' appeal is hereby GRANTED, and the defendant's appeal is DISMISSED.
*4 IT IS SO ORDERED.
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