CHAPTER 238
FORMERLY
HOUSE BILL NO. 255
AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO PROBATION BEFORE JUDGMENT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend § 4218, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 4218. Probation before judgment.
(a) Subject to the limitations set forth in this section, for a violation or misdemeanor offense under Title 4, 7, or 11, or for any violation or misdemeanor offense under Title 21 which is designated as a motor vehicle offense subject to voluntary assessment by § 709 of Title 21, or a violation of § 2702 of Title 14, or for violations of § 4166(d) of Title 21, or for violations of § 4172 of Title 21, or for a violation of a county or municipal code, a court exercising criminal jurisdiction after accepting a guilty plea or nolo contendere plea may, with the consent of the defendant and the State, stay the entry of judgment, defer further proceedings, and place the defendant on “probation before judgment” subject to such reasonable terms and conditions as may be appropriate. The terms and conditions of any probation before judgment shall include the following requirements: (i) the defendant shall provide the court with that defendant’s current address; (ii) the defendant shall promptly provide the court with written notice of any change of address; and (iii) the defendant shall appear if summoned at any hearing convened for the purpose of determining whether the defendant has violated or fulfilled the terms and conditions of probation before judgment. The terms and conditions may include any or all of the following:
(1) Ordering the defendant to pay a pecuniary penalty;
(2) Ordering the defendant to pay court costs to the State;
(3) Ordering the defendant to pay restitution;
(4) Ordering the defendant to perform community service;
(5) Ordering the defendant to refrain from contact with certain persons; and
(6) Ordering the defendant to conduct themselves in a specified manner.
The length of the period of probation before judgment shall be fixed by the court, but in no event shall the total period of probation before judgment exceed the maximum term of commitment provided by law for the offense or 1 year, whichever is greater.
(b) This section may not be substituted for:
(1) Section 1024 of Title 10. First offenders domestic violence diversion program;
(2) Section 900A of Title 11. Conditional discharge for issuing a bad check as first offense;
(3) Section 4767 of Title 16. First Offenders Controlled Substances Diversion Program; or
(4) Section 4177B of Title 21. First offenders; election in lieu of trial.
(c)(1) Notwithstanding any provision of this section to the contrary, no person shall be admitted to probation before judgment if:
a. The person is currently serving a sentence of incarceration, probation, parole or early release of any type imposed for another offense;
b. The person is charged with any offense set forth in this title, and has previously been convicted of any violent felony;
c. The person is charged with any offense set forth in this title, and has previously been convicted of any nonviolent felony within 10 years of the date of the commission of the alleged offense;
d. The person is charged with any offense set forth in this title, and has previously been convicted of any misdemeanor offense within 5 years of the date of the commission of the alleged offense;
e. The person is charged with any offense set forth in Title 4 or 7, and has been previously convicted of any offense set forth in Titles 4 or 7 within 5 years of the date of the commission of the alleged offense; or
f. The person is currently charged with any offense set forth in § 709 of Title 21, and has been previously convicted of any offense set forth in Title 21 within 5 years of the date of the commission of the alleged offense.
g. The person is currently charged with a violation of § 2702 of Title 14 and has been previously convicted of a violation of § 2702 within 5 years of the date of the alleged offense.
h. The person is charged with a violation of a county or municipal code provision and has previously been convicted of a violation of another county or municipal code provision within 5 years of the date of the commission of the alleged offense.
h.i. The person is charged with an offense involving a motor vehicle and holds a commercial driver license (CDL).
(2) For the purposes of this subsection, the following shall also constitute a previous conviction:
a. A conviction under the laws of another state, the United States, or any territory of the United States of any offense which is the same as, or equivalent to, any offense specified in paragraph (1) of this subsection;
b. An adjudication of delinquency; or
c. Any adjudication, resolution, disposition or program set forth in § 4177B(e)(1) of Title 21.
(d) This section shall not be available to any person who has previously been admitted to probation before judgment for any offense within 5 years of the current offense.
(e) Nothing in this section shall be construed to permit probation before judgment for a violation of a county or municipal code that would not be permitted for the corresponding state code offense.
(e)(f) Upon a violation of a term or condition of the Court’s order of probation before judgment, the Court may enter judgment and proceed with disposition of the person as if the person had not been placed on probation before judgment.
(f)(g) Upon fulfillment of the terms and conditions of probation before judgment, the Court shall enter an order discharging the person from probation. The burden shall be upon the defendant to demonstrate that the terms and conditions of probation have been fulfilled. The discharge is the final disposition of the matter. Discharge of a person under this section shall be without judgment of conviction and is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of a crime.
(g)(h) Notwithstanding any provision of this section to the contrary, the court shall not admit a defendant to probation before judgment nor otherwise apply any provision of this section unless the defendant first gives written consent to the court permitting any hearing or proceeding pursuant to this section to occur in the defendant’s absence if:
(1) Timely notice of the hearing or proceeding is sent or delivered to the address provided by the defendant pursuant to subsection (a) of this section; and
(2) The defendant fails to appear at said proceeding.
In the event that a defendant fails to appear at any hearing or proceeding pursuant to this section, the court may proceed in the defendant’s absence if it first finds that timely notice of the hearing or proceeding was sent or delivered to the address provided by the defendant pursuant to subsection (a) of this section. Nothing in this subsection shall limit the power of the Court to hold a hearing to determine whether a defendant is in violation of the terms of that defendant’s probation.
(h)(i) Notwithstanding the provisions of subsection (a) of this section to the contrary, in any case in which the Delaware Department of Justice does not intend to enter its appearance, the consent of the State shall not be required prior to placing a defendant on “probation before judgment.” Notwithstanding the foregoing, except for the offenses under Title 21 to which this section applies, the Attorney General or other prosecuting authority may advise the court of aggravating circumstances in opposition to placing a defendant on “probation before judgment.”
Approved May 19, 2016