         IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE
                      IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,                           )
                                             )
                v.                           )       Cr. ID No. 1212011741
                                             )
WILLIAM SANTIAGO,                            )
                                             )
                Defendant.                   )

                                    ORDER ON
                       DEFENDANT’S MOTION FOR REARGUMENT


Allison Abessinio, Esquire                                          Michael W. Modica, Esquire
Deputy Attorney General                                             715 King St., Ste. 300
820 N. French Street, 7TH Floor                                     P.O. Box 437
Wilmington, DE 19801                                                Wilmington, DE 19899-0437
Attorney for the State of Delaware                                  Attorney for Defendant

                                Date Submitted: February 17, 2014
                                 Date Decided: February 24, 2014

FRACZKOWSKI, J.

         On October 28, 2013, Defendant filed this Motion for Reargument and/or for New Trial

of the Court’s decision of August 29, 2013, in which the Court denied Defendant’s motion to

suppress and subsequently found Defendant guilty of Driving Under the Influence of Alcohol

and Possession of Drug Paraphernalia. The State contends that the motion is untimely under the

governing rule, Court of Common Pleas Criminal Rule 33.

                                             FACTS

         Trial in this matter was held on August 29, 2013. The Court first heard Defendant’s

motion to suppress evidence obtained in a non-consensual, warrantless extraction of Defendant’s

blood. The Court, bound by the Superior Court’s decision in State v. Flonnory,1 denied the

Motion, and the matter proceeded to trial. Ultimately, the Court found Defendant guilty of
1
    State v. Flonnery, 2013 WL 3327526 (Del. Super. June 12, 2013).
Driving Under the Influence of Alcohol and Possession of Drug Paraphernalia. Counsel for

Defendant moved to defer sentencing for 60 days, for the opportunity to file a motion to reargue

following the issuance of a pending Superior Court decision. The State did not object. The

Court granted Defendant’s motion and sentencing was scheduled for November 18, 2013.

         On October 28, 2013, Defendant filed the present motion, titled “Motion for Reargument

and/or for New Trial.” Defendant argues that subsequent to trial, the Superior Court issued State

v. Jones,2 which implicitly rejects the Flonnery holding upon which this Court’s decision was

based.

         The State argues that Defendant’s motion is untimely under Court of Common Pleas

Criminal Rule 33. Furthermore, the State contends, Defendant was not deprived of due process

and a new trial is not the proper remedy, as the Court’s decision was based on case law that

existed at the time of trial.

                                                 LAW

      Despite the dual title of Defendant’s motion, the argument presented by Defendant was

consistent with a motion for reargument. The State, on the other hand, presented argument only

as to a motion for new trial. The Court will bifurcate the motion and address the merits of

Defendant’s motion as a motion for new trial and as a motion for reargument separately.

      a. Motion for New Trial

         Motions for new trial must be timely filed pursuant to Court of Common Pleas Criminal

Rule 33, which provides:

         The Court on motion of a defendant may grant a new trial to that defendant if
         required in the interest of justice. If trial was by the Court without a jury the Court
         on motion of a defendant for a new trial may vacate the judgment if entered, take
         additional testimony and direct the entry of a new judgment. A motion for a new

2
    State v. Jones, 2013 WL 5496786 (Del. Super. Sept. 9, 2013).
                                                   2
       trial based on the ground of newly discovered evidence may be made only before
       or within two years after final judgment, but if an appeal is pending the Court may
       grant the motion only on remand of the case. A motion for a new trial based on
       any other grounds shall be made within 7 days after verdict or finding of guilty or
       within such further time as the Court may fix during the 7-day period.3

       At the conclusion of trial, counsel for Defendant moved for sentencing be deferred.

Counsel specified that this request was made for the purpose of filing a motion on Defendant’s

behalf in the event that the Superior Court were to issue a pending decision, which counsel

believed would conflict with Flonnery. The State did not object. The Court granted

Defendant’s, and deferred sentencing for 60 days. Defendant filed this motion within the 60 day

period, which was established by the Court on the day the verdict was issued. Thus, Defendant’s

motion is timely under CCP Crim. R. 33.

    a. Motion for Reargument

       The criminal rules of this Court do not address motions for reargument, however, Court

of Common Pleas Criminal Rule 57(b) addresses procedures not specified by rule as follows:

“[i]f no procedure is specifically prescribed by Rule, the Court may proceed in any lawful

manner not inconsistent with these Rules or with any applicable statute.”4 The Court has

considered motions for reargument in the criminal context under the standard of review set forth

in the civil text.5 A motion for reargument will be granted if “the Court has overlooked a

controlling precedent or legal principle, or the Court has misapprehended the law or facts such as

would have changed the outcome of the underlying decision.”6 For a motion for reargument to




3
  CCP Crim. R. 33 (emphasis added).
4
  CCP Crim. R. 57(b).
5
  See Parisan v. Cohan, 2012 WL 1066506 (Del. Com. Pl. March 29, 2012); State v. Bifferato,
2010 WL 3958778 (Del. Com. Pl. Aug. 17, 2010); State v. Munzer, 2009 WL 206088 (Del. Com.
Pl. Jan. 9, 2009).
6
  Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).
                                                3
be granted, the movant must “demonstrates newly discovered evidence, a change in the law, or

manifest injustice.”7

       Defendant argues that reargument is warranted due to a change in the law. Defendant

contends that State v. Jones,8 which was released by the Superior Court in the 60 day interim

between trial and sentencing, implicitly rejects the holding in State v. Flonnory.9 In Flonnory,

the court found that Delaware’s implied consent statute exempts blood draws from the warrant

requirement.10 On the other hand, the Jones court suppressed evidence obtained in a warrantless,

forced blood draw where the State failed to establish that sufficiently exigent circumstances

existed.11

       In the present case, the Court based its decision to deny Defendant’s motion to suppress

on Flonnery. The Defendant requested a stay of sentencing on the grounds that an expected

change in the law would warrant reargument. The State did not object, and the Court deferred

sentencing for 60 days. Indeed, within the 60 day period, the Superior Court issued State v.

Jones, which conflicts with the holding in Flonnery. (The Court also notes the decision issued

on November 4, 2013, by the Superior Court in State v. Predeoux, 2013 WL 5913393 (Del.

Super. Nov. 4, 2013), in which the analysis and conclusion does not follow the analysis and

conclusion in the Flonnery case). The Jones holding set forth a change in the law that would

have altered the outcome of this Court’s underlying decision. Accordingly, Defendant’s motion

for reargument must be granted.




7
  World Airways, Inc. v. Golson, 2013 WL 6917358, at *2 (Del. Super. Nov. 8, 2013) (quoting
Kennedy, 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006)).
8
  Jones, 2013 WL 5496786 (Del. Super. Sept. 9, 2013).
9
  Flonnery, 2013 WL 3327526 (Del. Super. June 12, 2013).
10
   Id. at 6.
11
   Jones, 2013 WL 5496786, at *5-6 (Del. Super. Sept. 9, 2013).
                                                4
                                          CONCLUSION

          For the foregoing reasons, it is hereby ORDERED that Defendant’s Motion for

Reargument and/or New Trial is GRANTED

          IT IS SO ORDERED.



                                               __________________________________________
                                               Alfred Fraczkowski, Associate Judge12




12
     Sitting by appointment pursuant to Del. Const. Art. IV, § 38 and 29 Del. C. § 5610.
                                                  5
