CHAPTER 130
FORMERLY
SENATE BILL NO. 58
AS AMENDED BY
SENATE AMENDMENT NOS. 1 AND 2 AND HOUSE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 11 AND TITLE 16 TO PROVIDE FOR TRUTH IN SENTENCING. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. This Act shall be known as the "Truth in Sentencing Act of 1989". Section 2. The purposes of this Act are:
A. To achieve truth in sentencing by assuring that the public, the State and the Court will know that the sentence imposed by the Court will be served by the defendant; and that, the defendant will know what the actual effect of the sentence will be.
B. To require accountability of the Court in fashioning a sentence designed to meet the objectives of SENTAC legislation including, but not limited to providing the least restrictive sentence that assures the public safety, makes use of sentencing alternatives and incarcerates the violence prone offender.
C. To encourage the Courts to impose sentences combining incarceration (where appropriate) with quasi-incarceration and probationary follow-up to assure continued supervision of offenders and their successful reentry into society with minimum risk to society.
Section 3. The provisions of this Act will take effect with respect to all crimes which are committed as of 12:01 a.m., June 30, 1990 or thereafter.
Section 4. The provisions of Title 11 and Title 16, which are repealed by this Act shall remain in force and effect for the purpose of trial and sentencing for all crimes which occur prior to 12:01 a.m., June 30, 1990.
Section 5. Amend Title 11 of the Delaware Code by striking Sections 4381, 4382, 4383 and 4384 in their entirety and enacting the following sections in lieu thereof:
14381. Earned Good Time.
(a) All sentences imposed for any offenses other than a life sentence Imposed for Class A felonies may be reduced by earned good time under the provisions of this Section and Rules and Regulations adopted by the Commissioner of Corrections.
(b) 'Good time may be earned for good behavior while in the custody of the Department of Corrections when the person has not been guilty of any violation of discipline, rules of the Department, or any criminal activity and has labored with diligence toward rehabilitation according to the following conditions:
(1) During the first year of any sentence, good time may be awarded at .the rate of 2 days per month beginning on the first day of his confinement.
(2) After completing 365 days of any sentence, good time may be awarded at the rate of 3 days per month.
(3) No person shall be awarded more than 36 days of good time under this subsection for good behavior in any one year consisting of 365 calendar days actually served.
(c) 'Good time' may be earned for participation in educational and/or rehabilitation programs as designated by the Commissioner under the following conditions:
(1) Good times may be awarded for satisfactory participation in approved programs at a rate of up to 2 days per calendar month.
(2) No more than 24 days of program good time total as established in this subsection may be awarded in any one year consisting of 365 days actually served
(d) 'Good time' may be earned by participation in work programs as authorized by §6532 of this Title at a rate of up to 2.5 days per month with a limit of 30 days earned during any one year consisting of 365 days actually served.
(e) No more than a total of 90 days of 'good time may be earned in any one year consisting of 365 days actually served.
§4382. Forfeiture of Good Time.
(a) Any person subject to the custody of the Department at Levels IV or V shall, upon the conviction of any crime during the term of his sentence, forfeit all good time accumulated to the date of the criminal act, this forfeiture is not subject to suspension.
(b) Any person subject to the custody of the Department of Corrections at Level IV or V who is determined to have violated the Rules of the Department of Corrections shall under the Rules and Procedures of the Department forfeit all or part of the good time accrued to the date of such offense. Forfeiture under this subsection may be suspended by the Department for the purposes of encouraging rehabilitation or compliance with discipline.
(c) When good time is actually ordered forfeit, it may not be recovered by the incarcerated person."
Section 6. Amend Title 11 of the Delaware Code by striking Sections 4201, 4202, 4204(b), 4205, 4206, 4207 and 4209A in their entirety, and enacting the following sections In lieu thereof:
"§4201. Classification of Felonies.
(a) Felonies are classified, for the purpose of sentence, into seven (7) categories:
(1) Class A Felonies;
(2) Class B Felonies;
(3) Class C Felonies;
(4) Class D Felonies;
(5) Class E Felonies;
(6) Class F Felonies;
(7) Class G Felonies.
(b) Any crime or offense which is designated as a felony but which Is not specifically given a class shall be a Class G Felony and shall carry the sentence provided for said class felony.
§4202. Classification of Misdemeanors.
(a) Misdemeanor, are classified for the purpose of sentence into two (2) categories:
(1) Class A Misdemeanors:
(2) Class 8 Misdemeanors.
(b) Any offense defined by statute which is not specifically designated a felony, a Class A Misdemeanor, a Class 8 Misdemeanor or a Violation shall 3e an unclassified Misdemeanor.
§4204. Authorized Disposition of Convicted Offenders.
(b) A person convicted of a class A felony may be sentenced to life imprisonment In accordance with §4205 of this Title, unless the conviction is for first-degree murder, in which event §4209 of this Title shall apply. Notwithstanding any other statute, a sentence under §4209 of this Title may not be suspended or reduced by the court.
§4205. Sentence for Felonies.
(a) A sentence of incarceration for a felony shall be a definite sentence.
(b) The term of Incarceration which the Court may impose for a felony Is fixed as follows:
(1) For a Class A Felony not less than 15 years up to life imprisonment to be served at Level V except for conviction of first degree murder in which event §4209 of this Title shall apply.
(2) For a Class B Felony not less than 2 years up to 20 years to be served at Level V.
(3) For a Class C Felony up to 10 years to be served at Level V.
(4) For a Class D Felony up to 8 years to be served at Level V.
(5) For a Class E Felony up to 5 years to be served at Level V.
(6) For a Class F Felony up to 3 years to be served at Level V.
(7) For a Class G Felony up to 2 years to be served at Level V.
(c) In the case of the conviction of any felony, the Court shall impose a sentence of Level V incarceration where a minimum sentence is required by subsection (b) of this Section and may Impose a sentence of Level V incarceration up to the maximum stated In subsection (b) for each class of felony.
(d) Where a minimum sentence is required by subsection (b) of this Section, such sentence shall not be subject to suspension by the Court.
(e) Where no minimum sentence is required by subsection (b), or with regard to any sentence in excess of the minimum required sentence, the Court may suspend that part of the sentence for probation or any other punishment set forth in §4204 of this Title.
(f) Any term of Level V incarceration imposed under this Section must be served in Its entirety at Level V, reduced only for earned 'good time' as set forth in §4381 of this Title.
(g) No term of Level V incarceration imposed under this Section shall be served in other than a full custodial Level V institutional setting unless such term is suspended by the Court for such other level sanction.
(h) The Department of Corrections, the remainder of this Section notwithstanding, may house Level V Inmates at a Level IV work release center or halfway house during the last 180 days of their sentence; provided, however, that the first five (5) days of any sentence to Level V, not suspended by the Court, must be served at Level V.
(I) The Department of Corrections, the remainder of this Section notwithstanding, may grant Level V inmates 48-hour furloughs during the last 120 days of their sentence to assist in their adjustment to the community.
(3) No sentence to Level V incarceration imposed pursuant to this Section is subject to parole.
(k) In addition to the penalties set forth above, the Court may Impose such fines and penalties as it deems appropriate,
(1) In all sentences for less than one year the Court may order that more than five (5) days be served in Level V custodial setting before the Department may place the offender in Level IV custody.
§4206. Sentence for Misdemeanors.
(a) The sentence for a Class A Misdemeanor may include up to 1 year incarceration at Level V and such fine up to $2,000, restitution or other conditions as the Court deems appropriate.
(b) The sentence for a Class B Misdemeanor may include up to 6 months incarceration at Level V and such fine up to 51.000, restitution or other conditions as tae Court deems appropriate.
(c) The sentence for an unclassified Misdemeanor may include up to 30 days incarceration at Level V and such fine up to $500, restitution or other conditions as the Court deems appropriate.
(d) The Court may suspend any sentence imposed under this Section for probation or any of the other sanctions set forth in §4204 of this Title.
(e) Any term of Level V incarceration imposed under this Section must be served in its entirety at Level V, reduced only for earned 'good time' as set forth in §4381 of this Title.
(f) No term of Level V incarceration Imposed under this Section shall be served in other than a full custodial Level V institutional setting unless such term is suspended by the Court for such other level sanction.
(g) The Department of Corrections, the remainder of this Section notwithstanding, may house Level V Inmates at a Level IV work release center or halfway house during the last 180 days of their sentence; provided, however, that the first five (5) days of any sentence to Level V, not suspended by the Court, must be served at Level V.
(h) The Department of Corrections, the remainder of this Section notwithstanding, may grant Level V inmates 48-hour furloughs during the last 120 days of their sentence to assist in their adjustment to the community.
(1) Any sentence for issuing a worthless check pursuant to §900 of this Title shall require restitution to the person to whom the check was given. For the purposes of this subsection, restitution shall mean the amount for which the check was written plus a. service fee of $30.00 for processing a worthless check, or a fee of $50.00 if more than one check by same person was processed.
(j) In all sentences for less than one year the Court may order that more than five (5) days be served in Level V custodial setting before the Department may place the offender in Level IV custody.
§4207. Sentences for Violations.
(a) The Court may Impose a fine of up to $300 for the first offense of any violation, up to $600 for the second offense of that same violation and up to $1,000 for the third offense of the same violation, provided that only violations which occurred within 5 years of the violation for which sentence is imposed shall be considered in determining sentence.
(b) The Court may impose a period of Level I probation up to 1 year for any violation."
Section 7. Amend Chapter 43, of Title 11 of the Delaware Code by adding a new §4354 thereto which shall read as follows:
"§4354. Applicability to Sentences Imposed Pursuant to Truth in Sentencing.
No sentence imposed pursuant to the provisions of the Truth in Sentencing Act of 1989, shall be subject to parole under the provisions of this subchapter."
Section 8. Amend Title 11 of the Delaware Code by designating the following offenses to the following classification:
"Section Classification
501 Class A Misdemeanor
502 Class F Felony
503 Class E Felony
511 Class A Misdemeanor
512 Class G Felony
513 Class E Felony
601 Unclassified Misdemeanor
602 Unclassified Misdemeanor
603 Class A Misdemeanor
604 Class E Felony
611 Class A Misdemeanor
612 Class D Felony
613 Class C Felony
621 Class A Misdemeanor
625 Class A Misdemeanor
626 Class G Felony
627 Unclassified Misdemeanor
628 Class B Misdemeanor
629 Class A Misdemeanor
630 Class F Felony
630A Class E Felony
631 Class E Felony
632 Class C Felony
635 Class B Felony
636 Class A Felony
645 Class F Felony
651 Class F Felony
652 Class A Misdemeanor
653 Class B Misdemeanor
763 Unclassified Misdemeanor
764 Unclassified Misdemeanor
765 Class A Misdemeanor
766 Class A Misdemeanor
767 Class A Misdemeanor
768 Class G Felony
769 Class F Felony
770 Class E Felony
771 Class D Felony
772 Class C Felony
773 Class C Felony
774 Class B Felony
775 Class A Felony
781 Class A Misdemeanor
782 Class G Felony
783 Class C Felony
783A Class B Felony
785 Class A Misdemeanor
Class G Felony is child removed
from De
791 Class A Misdemeanor
801 Class G Felony
802 Class D Felony
803 Class C Felony
804 Class A Misdemeanor
811(b)(1) Class G Felony
811(b)(2) Class A Misdemeanor
811(b)(3) Unclassified Misdemeanor
820 Class B Misdemeanor
821 Violation
822 Unclassified Misdemeanor
823 Class A Misdemeanor
824 Class F Felony
825 Class D Felony
826 Class C Felony
828 Class F Felony
831 Class E Felony
832 Class B Felony
840 Class G Felony - $500 or more
Class A Misdemeanor – less than $500
841 Class G Felony - $500 or more
Class A Misdemeanor – less than $500
846 Class E Felony
848 Class G Felony 0 $500 or more
Class A Misdemeanor – less than $500
850 Class B Misdemeanor
851 Class G Felony - $500 or more
Class A Misdemeanor – less than $500
853 Class A Misdemeanor
859 Class G Felony
861(b)(1) Class F Felony
861(b)(2) Class G Felony
861(b)(3) Class A Misdemeanor
862 Class G Felony
871 Class A Misdemeanor
873 Class A Misdemeanor
876 Class E Felony
877 Class A Misdemeanor
878 Class G Felony
881 Class A Misdemeanor
882 Class A Misdemeanor
891 Class A Misdemeanor
892 Class A Misdemeanor
893 Class A Misdemeanor
900 Class G Felony - $500 or more
Class A Misdemeanor - less than $500
903 Class G Felony - $500 or more
Class A Misdemeanor - less than $500
906 Class A Misdemeanor
907 Class A Misdemeanor
908 Class G Felony
909 Class A Misdemeanor
910 Class B Misdemeanor
911 Class G Felony
912 Class G Felony
913 Class G Felony
920 Class G Felony
921 Class A Misdemeanor
922 Unclassified Misdemeanor
937(a) Class D Felony
937(b) Class E Felony
937(c) Class F Felony
937(d) Class G Felony
937(e) Class A Misdemeanor
1001 Class G Felony
1101 Class A Misdemeanor
1102 Class A Misdemeanor
1105 Class A Misdemeanor
1106 Class B Misdemeanor
1107 Unclassified Misdemeanor
1108 Class B Felony
1109 Class D Felony
1110 Class B Felony
1201 Class E Felony
1203 Class E Felony
1205 Class A Misdemeanor
1206 Class A Misdemeanor
1207 Class A Misdemeanor
1211 Class A Misdemeanor
1212 Class A Misdemeanor
1221 Class A Misdemeanor
1222 Class F Felony
1223 Class D Felony
1233 Class A Misdemeanor
1241 Class B Misdemeanor
1243 Class A Misdemeanor
1244 Class A Misdemeanor
1245 Unclassified Misdemeanor
1246 Class A Misdemeanor
1251 Class A Misdemeanor
1252 Class G Felony
1253 Class D Felony
1254(1) Class D Felony
1254(b) Class B Felony
1256 Class A Misdemeanor
Class F Felony (weapon)
1257 Class A Misdemeanor
1259 Class G Felony
1261 Class E Felony
1262 Class E Felony
1263 Class E Felony
1263A(a)(2) Class E Felony
1263A(a)(3)b Class E Felony
1263A(a)(4)(b) Class E Felony
1263A(a)(1) Class G Felony
Class F Felony
(if witness is complaining witness)
1263A(a)(3)a Class G Felony
Class F Felony
(if witness is complaining witness)
1263A(a)(4)a Class G Felony
Class F Felony
(if witness is complaining witness)
1264 Class E Felony
1265 Class E Felony
1266 Class A Misdemeanor
1267 Class A Misdemeanor
1269 Class G Felony
1271(1) Class B Misdemeanor
1271(2) Class A Misdemeanor
1271(3) Class A Misdemeanor
1271(4) Class A Misdemeanor
1271(5) Class A Misdemeanor
1271(6) Class A Misdemeanor
1271(7) Class A Misdemeanor
1271(8) Class A Misdemeanor
1273 Class B Misdemeanor
1301 Unclassified Misdemeanor
1302 Class F Felony
1311 Unclassified Misdemeanor
1312 Class B Misdemeanor
1313 Class B Misdemeanor
1315 Unclassified Misdemeanor — if 2 prior
Convictions within one year,
otherwise a Violation
1320 Violation
1321 Violation
1322 Unclassified Misdemeanor
1323 Violation
1324 Unclassified Misdemeanor
1325 Class A Misdemeanor
1326 Violation
1331 Class A Misdemeanor
1332 Class A Misdemeanor
1335 Class A Misdemeanor
1336(b) Class G Felony
1336(d) Class G Felony
1336(r) Class A Misdemeanor
1338 Class D Felony
1339 Class G Felony - unless injury
Class E Felony – if injury
Class A Felony - if death
1340 Class A Misdemeanor -provided
mandatory fine shall remain as is
1341 Class B Misdemeanor
1342 Class B Misdemeanor
1343 Violation
1351 Class F Felony
1352 Class E Felony
1353 Class C Felony
1355 Class B Misdemeanor
1361 Class E Felony - for sale to minor
Class G Felony - otherwise
1365 Class A Misdemeanor
1401 Class A Misdemeanor
1402 Class A Misdemeanor
1403 Class A Misdemeanor
1404 Unclassified Misdemeanor
Unless previous conviction within 5 years
then Class A Misdemeanor
1405 Class A Misdemeanor
1406 Class A Misdemeanor
1407. Violation
1411 Class A Misdemeanor
1428 Class A Misdemeanor
1442 Class G Felony –unless second
offense within 5 years then Class E Felony
1443 Class A Misdemeanor
1444 Class E Felony
1445 Unclassified Misdemeanor
1446 Unclassified Misdemeanor
1447 Class B Felony
1448 Class F Felony
1449 Class B Felony
1450 Class F Felony
1451 Class F Felony
1452 Class B Misdemeanor
1453 Class B Misdemeanor
1504(a) Class B Felony".
Section 9. Amend Title 16 of the Delaware Code by designating the following offenses to the following classifications:
"Section Classification
4752 Class E Felony
4752A Class D Felony
4753 Class A Misdemeanor
4753A(a)(1) Class B Felony
4753A(a)(2) Class B Felony
4753A(a)(3) Class B Felony
4753A(a)(4) Class B Felony
4753A(a)(5) Class B Felony
4753A(a)(6) Class B Felony
4753A(a)(7) Class B Felony
4753A(a)(8a) Class B Felony
4754 Class B Misdemeanor
4754A Class B Misdemeanor
4755(a)(1) Class F Felony
4755(a)(2) Class F Felony
4755(a)(3) Class A Misdemeanor
4755(a)(4) Class F Felony
4755(a)(5) Class F Felony
4756 Class F Felony
4757(c) Unclassified Misdemeanor
4757(d) Class G Felony
4761(1) Class C Felony
4761(2) Class E Felony
4761(3) Class B Felony
4761(4) Class C Felony
4771 Class A Misdemeanor
4772 Class G Felony
4773 Class E Felony
4774 Unclassified Misdemeanor".
Section 10. Amend Title 16, §4763(a)(1) by striking the number of years in each
subsection and inserting in lieu thereof the following years:
"Subsection Years
a. 2
b. 3
c. 5
d. 10
e. 9
f. 17".
Section 11. Notwithstanding any provision of this Act to the contrary, the fines and mandatory sentence provisions of the following sections of Title 16 shall remain in effect as indicated.
"Section Mandatory Sentence Provision
4752 Fines remain in effect
4753A All mandatory fines and minimum
Mandatory terms of incarceration remain In effect
4761(3) & (4) All minimum mandatory terms of
incarceration remain in effect
4763(a)(2) All minimum mandatory terms of
incarceration remain In effect".
Section 12. Notwithstanding any provision in this Act to the contrary, the mandatory sentence provisions of Title 11, Sections 630(b), 630(a)(b), and 831(b) shall remain In effect as indicated.
Section 13. Amend Title 11, Section 832 by striking said subsections (b), (c) and (d) In their entirety and substituting In lieu thereof the following language:
"(b) A person convicted of Robbery First Degree for a second or subsequent offense shall receive a minimum sentence of four (4) years at Level V notwithstanding the provisions of §§4205(b)(2) and 4215 of this Title.
(c) The sentencing provisions of this section apply to Attempted Robbery First Degree as well as Robbery First Degree."
Section 14. Amend Title 11, Chapter 42 by adding a new subsection 4216 thereto which shall read as follows:
§4216. Transition Provisions.
(a) Where an inmate Is serving a sentence to Level V (incarceration) Imposed not under the Truth in Sentencing Act of 1989 and receives a subsequent sentence to Level V under the provisions of the Truth in Sentencing Act serving of the earlier sentence shall be suspended and the inmate shall serve the new Level V sentence until it Is completed and then resume serving the original sentence.
(b) Where an inmate is serving a 'non-mandatory' Level V (incarceration) sentence and Is subsequently sentenced to a mandatory term of incarceration, serving of the earlier sentence shall be suspended and the inmate shall serve the new mandatory Level V sentence until it is completed and then resume serving the earlier sentence.
(c) Where an inmate is serving Level V (incarceration) sentence imposed not under the Truth in Sentencing Act of 1989, and Is subsequently sentenced to Level V under the provisions of the Truth in Sentencing Act and had less than three years remaining on his prior sentence, the Court at the time of sentencing under the Truth in Sentencing Act may in its discretion suspend the remainder of the prior on-Truth in Sentencing Level V sentence.
(d) Any individual convicted of a crime on or after January 1, 1990, which crime occurred prior to that date may elect to be sentenced under the provisions of this Act rather than under the prior provisions of this Title."
Section 15. Amend §4751 of Title 16 by repealing said section In its entirety and inserting in lieu thereof the following section:
§4751. Prohibited Acts A; Penalties
(a) Except as authorized by this Chapter, any person who manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance or a counterfeit controlled substance classified in Schedule I or II which is a narcotic drug is guilty of a Class C felony and shall be fined not less than $5,000 nor more than $50,000.
(b) Except as authorized by this Chapter, in cases where death occurs as a result of the use or consumption of a controlled substance or counterfeit controlled substance classified in Schedule I or II which is a narcotic drug, any person who is convicted of manufacturing or delivering such drug shall be guilty of a Class 8 felony and shall be fined not less than $10,000 nor more than $100,000.
(c) Where an individual is convicted of a violation of subsection (a) or (b) of this section and the Attorney General may move to sentence the defendant as a non-addict, the Court shall conduct a hearing at which the Attorney General shall have the burden of proof by a preponderance of the evidence that the defendant is a non-addict. If the Court, after hearing, is satisfied that the defendant is, and was at the time of the offense, not addicted to controlled substances, then the following enhanced penalties shall apply:
(1) for the first violation of this section a mandatory minimum sentence of 6 years to be served at Level V.
(2) for the second or subsequent violation of this section a mandatory minimum sentence of 12 years to be served at Level V.
These minimum sentences may not be suspended by the Court."
Section 16. Amend Title 11 of the Delaware Code of 1974 by enacting a new §4216 thereto which shall read as follows:
"§4216. Jurisdiction Over Sentence Retained.
(a) In any case where the trial Court has imposed a sentence in excess of two years incarceration at Level V custody the Court shall retain jurisdiction to modify such sentence to reduce the level of custody or time to be served under the provisions of this section.
(b) The Court may modify such sentence solely upon the basis of an application filed by the Department of Correction for good cause shown.
(c) Good cause under this section shall include, but not be limited to, exception rehabilitation of the offender, serious medical illness or infirmity of the offender and prison overcrowding.
(d) Any application by the Department of Correction under this section shall be filed with the Board of Parole which shall hold a hearing under the provisions of subsection 4350(a) of this Title for the purpose of making a recommendation to trial court as to approval or disapproval of the application for modification.
(e) Upon receipt of the recommendation of the Board of Parole, the Court may in its discretion grant or deny the application for modification of sentence. The Court may request additional information, but need not hold further hearings on the application."
Section 17. Amend Title 11 of the Delaware Code of 1974 by enacting a new subsection 4204(1) thereto which shall read as follows:
"(1) Whenever a Court imposes a period of incarceration at Level V custody for one or more offenses that totals one year or more, then that Court must include as part of its sentence a period of custodial supervision at either Level IV, III or II for a period of not less than six months to facilitate the transition of the individual back into society."
Section 18. Amend Title 11 of the Delaware Code of 1974 by enacting a new subsection 4204(m) thereto to read as follows:
"(m) Whenever a court imposes a period of incarceration at Level V custody in excess of 301. of the maximum allowable penalty or imposes a period of incarceration at Level V custody less than 201. of the maximum allowable penalty, such court shall explain, in writing, the aggravating or mitigating circumstances for imposing such penalty. The basis for mitigating or aggravating circumstances shall be prescribed and adopted by the Sentencing Accountability Commission."
Approved July 17, 1989.