CURRAN et al.
WOOLLEY et al.
Prisoners filed petition for writ of habeas corpus. The Superior Court of New Castle County, Layton, J., 101 A.2d 303, dismissed petition without prejudice, and prisoners brought error. The Supreme Court, Wolcott, J., held that a prisoner was required to proceed first under Criminal Rule of the Superior Court dealing with correction of illegal sentence before petitioning for writ of habeas corpus.
[48 Del. 383] Writ of Error to the Superior Court of New Castle County.
Herbert L. Maris and Charles F. G. Smith, of Philadelphia, Pa., and Irving Morris, Wilmington, for appellants.
Stephen E. Hamilton, Jr., Deputy Atty. Gen., for appellees.
SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting.
The question raised by this appeal is one of procedure. The appellants, hereinafter referred to as the petitioners, contend that they have a right to proceed to a hearing on the merits of their contention that they are illegally imprisoned by way of petition for a writ of habeas corpus. The Board of Trustees, hereinafter referred to as the State, maintain, however, that the petitioners must first exhaust the remedies available to them under Rule 35 of the Criminal Rules of the Superior Court before they may be heard upon a petition for a writ of habeas corpus.
Rule 35 of the Criminal Rules of the Superior Court is, in part, as follows:
‘ Rule 35. Correction of Reduction of Sentence
‘ (a) Correction of Illegal Sentence .
The court may correct an illegal sentence at any
time. A prisoner in custody under sentence and claiming a right to be released
on the ground that such sentence was imposed in violation of the Constitution
and laws of this State or the United States, or that the court imposing such
sentence was without jurisdiction to do so, or that such sentence was in excess
of the maximum sentence authorized by law or is otherwise subject to collateral
attack, may file a motion at any time in the court which imposed such sentence
to vacate, set aside, or correct the same. * * * If the court finds that the
judgment was rendered without jurisdiction or that the sentence imposed was
illegal or otherwise subject to collateral attack, or that there was such a
denial or infringement of the constitutional rights of the prisoner as to
render the judgment subject to collateral attack, the court shall vacate and
set aside the judgment and shall discharge the prisoner or re-sentence him or
grant a new trial or correct the sentence as may appear appropriate. The court
need not entertain a second motion or
successive motions for similar relief on behalf of the same ...