CHAPTER 133

AN ACT TO AMEND TITLE 10, DELAWARE CODE, RELATING TO APPEALS BY THE STATE IN CRIMINAL CASES; WHEN APPEALS MAY BE TAKEN, THE PROCEDURE TO BE FOLLOWED, AND THE TIME FOR TAKING SUCH APPEALS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 10, Delaware Code, is hereby amended by adding a new Chapter 6 to read as follows:

CHAPTER 6. APPEALS BY THE STATE

§ 101. Appeals by the State in criminal cases

An appeal may be taken by the State from a lower court to an appellate court in the following instances:

(1) Appeal as of right. The State shall have an absolute right to appeal to an appellate court a final order of a lower court where the order constitutes a dismissal of an indictment or information or any count thereof or the granting of any motion vacating any verdict or judgment of conviction where the order of the lower court is based upon the invalidity or construction of the statute upon which the indictment or information is founded or where the order is based on the lack of jurisdiction of the lower court over the person or subject matter.

(2) Appeal in the discretion of the appellate court. The State may apply to the appellate court to permit an appeal to determine a substantial question of law or procedure, and the appellate court may permit the appeal in its absolute discretion. The appellate court shall have the power to adopt rules governing the allowance of such an appeal; but, in no event shall the decision or result of the appeal affect the rights of the defend-and and he shall not be obligated to defend the appeal, but the Court may require the Public Defender of the State of Delaware to defend the appeal and to argue the cause; provided, however, that if the order appealed from is an order suppressing or excluding substantial and material evidence the Court may permit an interlocutory appeal of any pretrial order, and if the order suppressing such evidence is reversed, the defendant may be subjected to a trial.

(3) The appeal or application for appeal shall be filed with the appellate court within 60 days from entry of the order appealed from.

§ 103. Definitions relating to section 101

As used in section 101 of this subchapter:

(1) "Appellate court" means a court of this State having direct appellate jurisdiction over a lower court.

(2) "Lower court" means any court of this State over which an appellate court of this State has direct appellate jurisdiction. The Superior Court is a lower court for the purposes of an appeal to the Supreme Court whether the action of the Superior Court which is subject to review by the Supreme Court is action resulting from the original jurisdiction of that court in a trial de novo in a proceeding initiated there or initiated in a lower court, or action resulting from a review of action of a lower court under section 101 or any other provision permitting appellate review in the Superior Court.

(3) "Order" includes any judgment, order, ruling, decision, memorandum, opinion, or equivalent entry of the lower court which constitutes a fixed determination by the lower court.

Approved June 9, 1969.