Matter of Perez
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IN THE SUPREME COURT OF THE STATE OF DELAWARE IN THE MATTER OF THE PETITION OF RICHARD PEREZ FOR A WRIT OF MANDAMUS. No. 109, 2001 Submitted: March 23, 2001 Decided: May 14, 2000 Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices. ORDER This 14th day of May 2001, upon consideration of the petition for a writ of mandamus filed by Richard Perez and the answer and motion to dismiss filed by the State of Delaware, it appears to the Court that: (1) Perez has applied to this Court for a writ of mandamus to be directed to the Department of Correction and personnel in that agency. It appears that Perez alleges that correctional authorities have incorrectly calculated a Superior Court sentence imposed in April 19931 (and corrected on July 28, 2000) and have failed to given him credit for time he spent in the State of Maryland s penal system. (2) It is well-settled Delaware law that [t]his Court s original jurisdiction to issue a writ of mandamus is limited to instances when a 1 State v. Perez, Del. Super., Cr.A.No. IN91-11-0929, Alford, J. (April 26, 1993). respondent is a court or a judge thereof. 2 Accordingly, Perez petition must be dismissed, because it requests the issuance of a writ to the Department of Correction. (3) Moreover, this Court will issue a writ of mandamus to a trial court only when the petitioner can show that there is the clear right to the performance of a duty by the trial court, and that the trial court has arbitrarily refused or has failed to perform the duty.3 Here, Perez has not demonstrated that he has initiated the appropriate legal process in the Superior Court to effect a review of the Department of Correction s calculation of his sentence. Because Perez has not demonstrated that he has the clear right to any performance of a duty by the Superior Court, he cannot prevail on a claim that the court has arbitrarily refused or failed to perform a duty. Accordingly, Perez petition for a writ of mandamus must be dismissed. NOW, THEREFORE, IT IS ORDERED that the State s motion to dismiss is GRANTED. The petition for a writ of mandamus is DISMISSED. BY THE COURT: /s/ Randy J. Holland Justice 2 3 Del. Const. art. IV, ยง 11(6); In re Hitchens, Del. Supr., 600 A.2d 37, 38 (1991). In re Bordley, Del. Supr., 545 A.2d 619, 620 (1988). 2
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