State v. Cooley
| Decision Date | 21 May 1981 |
| Citation | 430 A.2d 789 |
| Court | United States State Supreme Court of Delaware |
| Parties | STATE of Delaware, Plaintiff, Appellant, v. John A. COOLEY, Defendant, Appellee. |
Upon motion to dismiss appeal. Motion denied.
Ralph K. Durstein, III, Deputy Atty. Gen. (argued), Wilmington, for plaintiff-appellant.
John E. Babiarz, Jr. (argued), of Morris, Nichols, Arsht & Tunnell, Wilmington, for defendant-appellee.
Before DUFFY, QUILLEN and HORSEY, JJ.
This is an appeal by the State from an order of the Superior Court dismissing a criminal prosecution. The only issue before us is whether the appeal was timely filed, and we hold that it was.
John A. Cooley, (defendant) was indicted for criminally negligent homicide in violation of 11 Del.C. § 631. After arraignment, he moved to suppress certain evidence and the Superior Court granted the motion by an order dated December 4, 1980. On February 5, 1981, the State filed a certification that the evidence ordered suppressed was essential to the prosecution of the case and, in accordance with a statutory procedure, the Superior Court dismissed the action on February 18. Then, on February 27, the State filed a notice of appeal in this Court. Thereafter, defendant filed a motion to dismiss the appeal on the ground that it was untimely.
Under certain specific and limited circumstances, the State has an appeal as of of right under the provisions of 10 Del.C. § 9902, which reads in full as follows: 1
"(a) The State shall have an absolute right to appeal to an appellate court a final order of a lower court where the order constitutes a dismissal of an indictment or information or any count thereof, or the granting of any motion vacating any verdict or judgment of conviction where the order of the lower court is based upon the invalidity or construction of the statute upon which the indictment or information is founded or the lack of jurisdiction of the lower court over the person or subject matter.
(b) When any order is entered before trial in any court suppressing or excluding substantial and material evidence, the court, upon certification by the Attorney General that the evidence is essential to the prosecution of the case, shall dismiss the complaint, indictment or information or any count thereof to the proof of which the evidence suppressed or excluded is essential. Upon ordering the complaint, indictment or information or any count thereof dismissed pursuant to the Attorney General's certification, the reasons of the dismissal shall be set forth in the order entered upon the record.
In seeking a dismissal of the State's appeal, Cooley argues that the statutory right given to the State contemplates prompt action on its part; to implement that purpose, he says, a reasonable construction of the Statute is that both the requisite certification by the Attorney General and the order of dismissal by the Superior Court must be completed within thirty days after entry of the order suppressing the evidence in issue. When that is done, continues Cooley, the order of dismissal, in effect, ripens the order suppressing the evidence from an interlocutory decree to an appealable final judgment. 2 Cooley argues that any other construction of the Statute would give the State an unlimited time in which to make the certification permitted under § 9902(b).
Turning to the statutory plan, § 9904 provides that an appeal shall be filed "within 30 days from entry of the order appealed from." Because of the Constitutional provision, that can only mean a "final order." The State is given the right of appeal by § 9902(c), which provides that it has an "absolute right of appeal ... from an order entered pursuant to subsection (b)" and, for present purposes, that is the provision which must be examined.
Subsection (b), § 9902(b), plainly provides for a three-step procedure to be followed when the State elects to perfect an appeal of right; thus:
(1) The Trial Court enters an order adverse to the State "suppressing or excluding substantial and material evidence";
(2) The Attorney General then certifies that the "evidence is essential to the prosecution...
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