Supreme Court of Delaware, 2019

Johnson v. State

Supreme Court of Delaware · Decided July 17, 2019 · Valihura J.

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE ROGER L. JOHNSON, §

Defendant Below, § No. 226, 2019 Appellant, §

§ Court Below—Superior Court v. § of the State of Delaware

STATE OF DELAWARE, § Cr. ID No. 9908000065 (K)

Plaintiff Below, § Appellee. §

Submitted: June 5, 2019 Decided: July 17, 2019

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

Having considered the notice to show cause and the response, it appears to the Court that:

(1) On May 24, 2019, the appellant, Roger L. Johnson, filed a notice of appeal from a Superior Court order, dated April 5, 2019, denying his motion to recuse the bench. The Senior Court Clerk issued a notice directing Johnson to show cause why this appeal should not be dismissed for this Court’s lack of jurisdiction to consider a criminal interlocutory appeal and for untimeliness. In his response to the notice to show cause, Johnson argues that the Superior Court order is final.

(2) This Court may only review a final judgment in a criminal case. 1 An order denying a motion for recusal is not a final order.2 This appeal is also untimely because it was filed more than thirty days after the entry of the order upon the docket.3 The appeal must be dismissed.

NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b), that this appeal is DISMISSED.

BY THE COURT: /s/ Karen L. Valihura Justice

1 Del. Const. art. IV, § 11(1)(b). See also Gottlieb v. State, 697 A.2d 400, 401 (Del. 1997) (holding this Court lacks jurisdiction to review interlocutory orders in criminal cases). 2 See, e.g., Shelley v. State, 2018 WL 6331623, at *1 (Del. Dec. 3, 2018) (dismissing appeal from denial of motion to recuse as interlocutory); Desmond v. State, 2010 WL 3673039, at *1 (Del. Sept. 21, 2010) (“The denial of a motion for recusal of a judge is not a final, appealable order.”). 3 Supr. Ct. R. 6 (a)(iv) (providing that appeal of postconviction order must be filed within thirty days of entry of the order upon the docket).

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