Nave v. State of Delaware.
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August 29, 2001 Mr. Jeffrey Nave Delaware Cor rectional Center RD 1 - Box 500 Smyrna, DE 19977 RE: Nave v. State C.A.No. 01M-03-002-JOH Petition for Writ of Hab eas Corpus - DENIED Dear M r. Nave: You have filed a petition for a writ of habeas corpus challengin g the validity of the suspended portion of your sentence. That sentence was imposed on January 10, 1992. On that date, I declared you to be an habitual offender under the provisions of 11 Del.C. §4214(a); you had been convicted of a fourth separate felony. At that time, I sentenced you to a ter m of fifteen years as an hab itual offender under §4214(a), but suspended it after you served ten years. Your current petition contests this Court s power to suspend any p ortion of a senten ce imposed un der §421 4(a). You had raised a similar question in a letter to me in September 29, 1993 about whether this Court could suspend any portion of an habitual offender sentence. In my responding letter to you of October 7, 1993, I stated: However, there is a portion of your letter in which you question the validity of the sentence which I imposed on you as an habitual offender. Specifically, I imposed upon you a sentence under the habitual offender act of fifteen years in jail which I suspended after ten years. Y ou question the Superior Cour t s power to suspend any sentence under the habitual offender act. While I and the judges of this Court do not agree that we are prohibited from suspending any portio n of a sentence imposed under the habitual offender act, should there be no power to suspend any portion of the sentence, the resu lt in your case would be that you would have to serve all fifteen Nave v. State C.A.No. 01M-03-002-JOH Page No. 2 years in jail. If the suspension of five years were not proper, it does not mean that the sentence is totally invalid but only that portion of the sentence which was suspended. Therefore, you may want to think a bout wh at you w ant to questio n in connection with the sentence I imposed under the habitual offender act. 1 At the time tha t letter w as wr itten, judges of th is Cour t believed §4214(a) sentences could be suspended. Our view has since changed. 2 In your original petition and subsequent correspondence, you cite to th e position of the De partm ent of Justice ta ken in other litigation that no portion of a §4214(a) sentence can be suspended. That same position has been repeated here in the State s response to the petition. In short, therefore, the Court, the State and you are in agreement that no portion of such a sentence can be suspended. T he language of §4214(a) prohibits suspension of any portion of the sentence. 3 The disagreement now, how ever, arises over the consequences of suspension of five year s of your origina l fifteen-year sentence. You ask that the last five years be stricken, resulting, in effect, in a ten-year sentence. There can be only one result, the one of which you were forewar ned in 1993 and which was the only sentence §4214(a) allowed, that is, a full fifteen years of incarceration with no suspension. 4 Accordingly, your sen tence of January 10, 1992 is corrected to impo se fifteen years at level 5 effective January 10, 1992. The Court concurs with the position taken by the State in its March 14, 2001 r esponse that you are entitled to earn good time. That, of cours e would also star t on Janua ry 10 , 1992. This co rr ection of yo ur sen tence 1 Letter to Jeffr ey Nave (October 7, 1993). 2 See for example, Dixon v. Williams, Del.Sup er. , C .A .N o. 00M -08-023, Her lihy, J. (A ugust 31, 2000). 3 Your objection to my request to the State to res pond to y our p etition is ill- 4 Bryant v. State, D el.Supr. , N o. 253, 1992, M oore, J. (January 8, 1993) founded. (ORD ER). Nave v. State C.A.No. 01M-03-002-JOH Page No. 3 to impose jail time which the statute mandated neither increases you sentence nor violates any constitutional bar. 5 CONCLUSION For the reasons stated herein, therefor e, your petition fo r writ of habeas corpus is DENIED. IT IS SO ORDERED. Sincerely, JOH/ bsr Enclosure Original to Prothonotary cc Loren C . M eyers, E sq. 5 White v. State, D el.Sup r. , 5 76 A. 2d 1322 (199 0).
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