CHAPTER 141

FORMERLY

SENATE HILL NO. 291

AS AVIENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 41, TITLE 11, OF THE DELAWARE CODE RELATING TO CRIMINAL PROCEDURES AND PROVIDING FOR RESTITUTION FOR PROPERTY DAMAGE OR LOSS SUSTAINED BY VICTIMS OF CRIMES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 41, Title 11 of the Delaware Code by adding thereto a section, designated as §4106, which new section shall read as follows:

"§4106 Restitution for Property Damage or Los Sustained by Victims of Crimes

(a) Any person convicted of stealing, taking receiving, converting, defacing, or destroying property, shall be liable to each victim of his offense for the

value of the property or property rights lost to the victim and for the value of any property which has diminished in worth as a result of the actions of such convicted offender and shall be ordered by the Court to make restitution. If the court does not require that restitution to be paid to a victim, the court shall state it's reason on the record. The convicted offender shall also he liable for direct out-of-pocket losses, loss of earnings and other expenses and inconveniencies incurred by victim as a direct result of the crime. For each criminal offense resulting in arrest in which property is alleged to have been unlawfully taken, damaged or otherwise diminished in value, a loss statement shall be prepared, by the pollee or by the victim when there is no police involvement documenting for the court, the value of the property lost or diminished as a direct result of the crime.

(b) In accordance with the evidence presented to the Court, The Court shall determine the nature and amount of restitution, if any, to be made to each victim of the crime of each convicted offender. The offender shall `)e ordered to pay a fixed sum of restitution or shall he ordered to work a fixed number of hours under the work referral program administered by the Department of Correction, or both.

(c) In the event a convicted offender is ordered by the court to pay fines, costs, or other financial obligations along with restitution, payments shot/ first he applied to victim compensation fund, next to pay restitution and then to the other payments ordered to be made.

(d) Each court shall estahlish procedures for the collection and disbursement of funds ordered under this section, including notification of the victim that restitution has been ordered.

(e) An order of restitution may not preclude the victim from proceeding in a civil action to recover damages from the offender. A civil verdict shall he reduced by the amount of restitution paid under the criminal restitution order.

(a) The provisions of this Act shall he effective October 1, 1981.

Section 2. Amend §5915, Chapter 59, Title 11, Delaware Code by inserting after the word "cost" and before the word "penalties" as the same appear in the first sentence thereof the word "restitution"

Section 3. Amend §1721 (b), Chapter 17, Title 10, Delaware Code by inserting after the word "fines" and before the word "and" as the same appear thereof the word "restitution"

Section 4. Amend §912 (c), Chapter 9, Title 10, Delaware Code by inserting after the word "costs" and before the word "and" as the same appear in the first sentence thereof the word "restitution"

Section 5. Amend §1311 (a), Chapter 13, Title 10, Delaware Code by inserting after the word "fines" and before the word "and" as the same appear therein the word "restitution"

Section 6. Amend §4101 (b), Chapter 41, Title 11, Delaware Code by striking the words "or both" as the same appear in the first sentence thereof and substituting in lieu thereof the words "restitution or all three"

Section 7. Amend §4104 (a), Chapter 41, Title 11, Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(a) When a court imposes a fine, costs, or restitution 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, costs, or restitution at designated periodic intervals, and in such case may direct that the fine, costs, or restitution be remitted to a probation officer who shall report to the court at such periods as the court may direct, any failure to comply with the order;

3. Where the defendant is sentenced to a period of probation as well as fine, costs, or restitution that payment of the fines, costs, or restitution shall be a condition of the probation:,

Section 8. Amend §4104 (c) and (d), Chapter 41, Title 11, Delaware Code by said subsection in its entirety and substituting in lieu thereof a new subsection to read as follows:

(c) Any court may, in its discretion, direct any person sentenced to pay a fine or restitution upon conviction of a crime who is employed within this State or by a Delaware resident or employer, to execute an assignment of a specified periodic sum not to exceed 1/3 of his total earnings, which assignment shall direct his employer to withhold and remit that amount to this State up to the total of the fine, costs, and restitution imposed.

An assignment of earnings excecuted in accordance with this subsection shall be binding upon an employer in the same manner as an attachment of wages pursuant to Title 10, except that an assignment need be filed only once with the employer who shall make the withholding and remittances until the full amount is paid. An amount of total earnings consistent with federal law may be assigned. An employer shall take no action against an employee who has executed an assignment, and the penalty imposed upon an employee solely because of an assignment under this subsection shall he in accordance with the manner set forth for attachments.

(d) For purposes of ensuring the payment of fines, restitution, and the enforcement of any orders imposed under this section, the court shall retain jurisdiction over the convicted person until any fine or restitution imposed shall have been paid in full. The court may write off the fines, costs, and restitution of any convicted person when the court receives evidence that such person is deceased.

Section 9. Amend §4105, Chapter 41, Title 11, Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

§4105 Default in Payment of Fine; inability to Pay

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

(b) Where a person sentenced to pay a fine, costs, restitution or all three, on conviction of n crime is unable or fails to pay such fine, costs, restitution or all three, at the time of impostion of sentence or in accordance with the terms of payment set by the court, the court may order the person to report at any time to the Commissioner of the Department of Correction, or a person designated by him, for work for u number and schedule of hours necessary to discharge the fine, costs, or restitution Unposed. For purposes of this section, the hourly rate shall be established in accordance with the then-prevailing federal minimum wage, and shall be used in computing the amount credited to any person discharging fines, costs, and restitution. In cases involving Justices of the Peace Courts, the Chief Magistrate thereof shall establish guidelines for the number of hours of work which may he assigned and the Courts shall adhere to said guidelines. The Department may approve public work assignments for convicted persons in accordance with subsection (c) of this section, whereupon the Commissioner, or a person designated by him may assign the convicted person to work under the supervision of any state, county or municipal agency on any project or assignment specifically certified for that purpose. The Department of Correction shall not compensate any convicted person assigned to work under the supervision of any state, county, or municipal agency but shall credit such person with the number of hours of satisfactory service. When the number of such hours equals the number of hours imposed by the court, the Department shall certify this fact to the appropriate court, and the court shall proceed as if the fines, rosts, and restitution had been paid in cash. Fines, costs, and restitution successfully worked off in the above manner shall not be considered as receivables of the court, but the records shall show the hours worked. Failure to comply with an order of the court made pursuant to this section shall he punishable as civil contempt and all courts shall have the power to punish us a civil conte,npt imy convicted person who fails to comply with such an order. In the event a person serves a sentence of incarceration for contempt of court in accordance with this subsection, the length of the sentence being with the courts discretion and based upon the amount of the outstanding fines and costs, the court in its discretion may order that any fines and costs totalling less than $1,000 shall be cancelled.

(c) Any agency of the State, county or any municipality or any non-profit organization approved by the Court may submit public work projects or proposed assignments to the Department of Correction for certification us 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.

(d) Notwithstanding subsection (a) of this section, where a defendant sentenced to be imprisoned is ordered to pay a fine, costs, restitution, or all three, the court may order an additional sentence of imprisonment in lieu of requiring the payment of the fine, costs, restitution, or all three; provided, however, that this additional sentence of imprisonment may not exceed 30 days, to be served concurrently or consecutively with the sentence originally imposed, as the court may order.

(e) A court having probationary powers may, in its discretion, treat any failure to comply vith a court order in respect to fines, costs, restitution, or all three either as a civil contempt or as if the defendant had been placed on probation and the probation violated; provided, however, that any sentence for violation of probation may not exceed 30 days.

Approved July 13, 1981.