Submitted: March 25, 2014.
On Defendant's Motion for Postconviction Relief.
Kathleen Dickerson, Esquire, Deputy Attorney General, Department of Justice, Dover, Delaware, Attorney for the State.
Tracy D. Crisco, Viola, Delaware, pro se.
Richard R. Cooch, R.J.
This 3rd day of June 2014, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. Defendant Tracy D. Crisco ("Defendant") was convicted of Theft by False Pretense and Receiving Stolen Property. His conviction was affirmed by the Supreme Court of Delaware on March 24, 2008. Defendant was discharged from probation in May of 2014 and a civil judgment was entered in the amount of $3, 887.00.
2. Defendant filed a "Motion to Dismiss for Loss or Destruction of and Failure to Produce Exculpatory Evidence and the Commission of Perjury by the States Representatives or Witnesses" on November 8, 2010. Defendant's motion relies primarily on misconduct by the State and investigators he alleges occurred before and during his trial, including misstatements by witnesses and withholding of "exculpatory evidence."
3. Superior Court Criminal Procedure Rule 61 for Postconviction Remedy governs "the procedure on an application by a person in custody or subject to future custody under a sentence of this court seeking to set aside a judgment of conviction…" "All courts in Delaware that have considered whether postconviction relief under Rule 61 is potentially available to a person who is not 'in custody or subject to future custody' for the challenged sentence have agreed that such relief under Rule 61 is not available." The Delaware Supreme Court has elaborated: We have previously explained that a person loses standing to move for postconviction relief under Rule 61 where the defendant is not in custody or subject to future custody for the underlying offense or challenged sentence. The Superior Court has consistently applied the custody standard in summarily dismissing other postconviction motions. The Superior Court discharged Ruiz from probation on June 3, 1997, he is not subject to any future custody for these original charges, and thus lacks standing to seek Rule 61 relief. We affirm the denial of his motion for postconviction relief without reaching his substantive claims.
4. Before addressing the merits of this Motion for Postconviction Relief, the Court must address any procedural requirements of Superior Court Criminal Rule 61(i). Here, Defendant has been discharged from probation and a civil judgment has been entered. He is therefore no longer "in custody or subject to future custody" in a manner contemplated by Rule 61. As such, Defendant lacks standing under Rule 61 and is not entitled to seek postconviction relief. The Court need not reach the merits of Defendant's Motion.
Therefore, Defendant's Motion for Postconviction Relief is ...