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 The provisions of Title 11 and Title 16, which are repealed by this Act shall remain in force and effect for the purpose of trial and sentencing for all crimes which occur prior to 12:01 a.m., June 30, 1990.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.