IN THE SUPREME COURT OF THE STATE OF DELAWARE
KENNETH E. FINK, §
§
Defendant Below, § No. 451, 2019
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 0005008005 (N)
§
Plaintiff Below, §
Appellee. §
Submitted: November 12, 2019
Decided: November 22, 2019
Before SEITZ, Chief Justice; VALIHURA, and TRAYNOR, Justices.
ORDER
Having considered the notice to show cause and the response to the notice to
show cause, it appears to the Court that:
(1) On October 3, 2019, the Superior Court denied the appellant Kenneth
Fink’s motion for review and/or reduction of his probationary sentence. On October
9, 2019, Fink filed a timely motion for reargument in the Superior Court.1 On
October 31, 2019, while the motion for reargument was still pending, Fink filed a
1
Super. Ct. Civ. R. 6(a) (excluding intermediate Saturdays, Sundays and legal holidays in
computation of time period that is less than eleven days); Super. Ct. Crim. R. 45(a) (excluding
intermediate Saturdays, Sundays and legal holidays in computation of time period that is less than
eleven days); Super. Ct. Civ. R. 59(e) (requiring motion for reargument to be filed within five days
after filing of the Superior Court’s decision); Super. Ct. Crim. R. 57(d) (providing for the
application of the Superior Court Civil Rules).
notice of appeal from the Superior Court’s October 3, 2019 order in this Court. The
Senior Court Clerk issued a notice directing Fink to show cause why this appeal
should not be dismissed for this Court’s lack of jurisdiction to hear an interlocutory
appeal in a criminal case. In his response to the notice to show cause, Fink states
that he filed an appeal because he was not sure his motion for reargument tolled his
time to file an appeal.
(2) This Court may only review a final judgment in a criminal case.2 “[A]
timely filed motion for reargument will suspend the finality of the judgment and toll
the time in which to file a notice of appeal with this Court.”3 In light of the timely
and pending motion for reargument, this appeal must be dismissed as interlocutory.
After the Superior Court rules on the motion for reargument, Fink may appeal the
Superior Court’s October 3, 2019 order.
NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(c),
that this appeal is DISMISSED. The filing fee paid by Fink shall be applied to any
future appeal he files from a final order entered in the case.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice
2
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).
3
Dickens v. State, 2004 WL 1535814, at *1 (Del. June 25, 2004) (citing Linda D.P. v. Robert J.P.,
493 A.2d 968 (Del. 1985) and Duffy v. State, 1998 WL 138945 (Del. Mar. 4, 1998)).
2