CHAPTER 198

AN ACT TO AMEND CHAPTER 41, TITLE 11, DELAWARE CODE, RELATING TO THE IMPOSITION AND COLLECTION OF FINES AND COSTS, PROVIDING FOR REMITTANCE OF FINES TO VICTIMS OF CRIMES, PROHIBITING IMPRISONMENT IN DEFAULT OF FINES, AND PROVIDING FOR WORK ASSIGNMENTS FOR THE DISCHARGE OF FINES.

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

Section 1. Chapter 41, Title 11, Delaware Code, is amended by striking § 4103 in its entirety and inserting in lieu thereof a new §4103 to read as follows:

§ 4103. Procedure for determining the amount of a fine upon considering the defendant's gain from the crime or the physical or personal damage resulting therefrom; remittance of fine to victim of crime

(a) Order Directing A Hearing

In any case where the court or justice of the peace is of the opinion that the sentence should consist of or include a fine and that the defendant's gain from the commission of the offense and/or the loss or physical damage or injury resulting from the commission of the offense should be considered in assessing the amount of the fine to be imposed, the court or justice of the peace may order a hearing upon notice to the defendant and the Attorney General to determine the amount thereof.

(b) Conduct of Hearing to Fix Fine

(1) At any hearing held pursuant to this section the burden of proof shall be upon the State. A finding as to the amount of the defendant's gain and/or the loss or physical damage or injury resulting from the commission of the crime must be based upon a preponderance of the credible evidence. Any relevant evidence, not legally privileged, may be received regardless of its admissibility under the exclusionary rules of evidence,

(2) Following the hearing the court or justice of the peace shall determine the amount of the defendant's gain and/or the amount of the loss or physical damage or personal injury resulting from the commission of the offense, make written findings of fact, and impose a fine based upon such finding. The court or justice of the peace may impose such fine in lieu of a fine prescribed by statute.

(c) Remittance of Fine

Any fine imposed and collected under this section shall be remitted to the person or persons who suffered the loss and/or physical or personal damage, or both, up to an amount sufficient to compensate the person or persons for such loss or physical damage as determined by the court or justice of the peace. Remittance shall be made in the manner and under the terms and conditions set by the court or justice of the peace. Imposition of the said fine may constitute the entry of a civil judgment against defendant if the court or justice of the peace so orders.

Section 2. Chapter 41, Title 11, Delaware Code, is amended by adding a new § 4105 to read as follows:

§ 4105. Fines and costs; how collected

(a) When a court or justice of the peace imposes a fine and/or costs upon a defendant, the court or justice of the peace may direct as follows:

(1) That the defendant pay the entire amount at the time sentence is imposed; or

(2) That the defendant pay a specified portion of the fine and/or costs at designated periodic intervals, and in such case may direct that the fine and/or costs be remitted to a probation officer who shall report to the court or justice of the peace at such periods as the court or justice of the peace may direct, any failure to comply with the order;

(3) Where the defendant is sentenced to a period of probation as well as a fine and/or costs, that payment of the fine and/or costs shall be a condition of the probation.

(b) Any court or justice of the peace may in its discretion permit any person sentenced to pay a fine upon conviction of crime to elect, in lieu of the payment of the fine ordered, to execute a bond acknowledging the amount of the fine imposed upon him as a debt due and owing to the State of Delaware and binding himself unto the State in an amount equal to ten times the fine imposed. The bond shall be so conditioned that, should the amount of the fine imposed be paid to the State of Delaware on or before the tenth day next following the day on which the fine is imposed, then in that event the bond shall be null and void. The bond shall contain a warrant of attorney authorizing the prothonotary or any attorney of record in the State of Delaware or elsewhere to appear in any court or before any justice of the peace and confess judgment against the person so bound. Upon execution of the said bond, the convicted person shall be required to endorse on the reverse thereof a list of all motor vehicles and any other personal or real property owned by him or in which he has any title or interest with a description and the location thereof.

(c) Any court or justice of the peace may in its discretion permit any person sentenced to pay a fine upon conviction of a crime who is employed within the State of Delaware or by a Delaware resident or employer, to elect to execute an assignment of a specified periodic sum not to exceed one-third of his total earnings, which assignment shall direct his employer to withhold and remit that amount to the State up to the total of the fine and costs imposed.

(d) For purposes of ensuring the payment of fines and the enforcement of any orders imposed under this section, the court or justice of the peace shall retain jurisdiction over the convicted person until any fine imposed shall have been paid in full.

Section 3. Chapter 41, Title 11, Delaware Code, is amended by adding a new § 4106 to read as follows:

§ 4106. Default in payment of fine; inability to pay fine

(a) No person sentenced to pay a fine or costs upon conviction of a crime shall be ordered to be imprisoned in default of the payment of such fine or costs.

(b) Where a person sentenced to pay a fine and/or costs upon conviction of a crime is unable to pay or fails to pay such fine and/or costs at the time it is imposed or in accordance with the terms of payment set by the court or justice of the peace, the court or justice of the peace may order the said person to report during regular work days to the Commissioner of the Department of Correction for work for a number and schedule of days necessary to discharge the fine imposed. The Department of Correction may approve public work projects for assignment of convicted persons in accordance with subsection (c) of this section, whereupon the said Commissioner of the Department of Correction may assign the said convicted person to work under the supervision of any State, county, or municipal agency or any project or assignment specifically certified for that purpose. The Department of Correction shall compensate the convicted person at a rate of pay equal to that normally paid to employees performing the same or similar services for that State, county, or municipal agency to which such convicted person is assigned, except that the Department shall withhold from the periodic earnings of the said convicted person all amounts not deemed by the Department to be required to sustain the convicted person. Upon petition of the convicted person to the court or justice of the peace which imposed the original sentence, the determination of the Department of the amount withheld shall be subject to review. The amounts withheld shall be paid over to the State to be applied to the fine and/or costs imposed until the said fine and/or costs has been fully paid. Failure to comply with an order of the court made pursuant to this provision shall be punishable as civil contempt, and all courts and justices of the peace shall have the power to punish as a civil contempt any convicted person who fails to comply with such an order.

(c) Any agency of the State, county, or any municipality may submit public work projects or proposed assignments to the Department of Correction for certification as approved public work projects under this section. Upon certification the agency will be notified and the Commissioner of the Department of Correction will be authorized to begin to assign convicted persons to the certified project or assignment.

Section 4. The powers conferred by this Act shall be in addition to and not in substitution for the powers conferred by any other general, special or local law. The powers conferred by this Act may be exercised notwithstanding that any other general, special or local law may confer such powers, and without regard to the requirements, restrictions, limitations or other provisions contained in such other general, special or local law.

Section 5. If any part of this Act shall be held unconstitutional, such holding shall not in anywise invalidate the remaining provisions of this Act, and to this end the provisions of this Act are declared severable.

Approved July 1, 1969.