CHAPTER 350

FORMERLY

SENATE BILL NO. 397

AS AMENDED BY SENATE AMENDMENT NO. 1

AN OMNIBUS ACT TO AMEND TITLE 11 AND TITLE 16 TO PROVIDE CLARIFICATION AND CONSISTENT APPLICATION OF THE INTENT OF THE TRUTH IN SENTENCING ACT OF 1989.

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

Section 1. Amend Title 11, Section 4204(m) by striking said section in its entirety and substituting the following:

"(m) Whenever a court imposes a sentence inconsistent with the presumptive sentences adopted by the Sentencing Accountability Commission, such court shall set forth on the record its reasons for imposing such penalty."

Section 2. Amend Title 11, Section 4206(c) by striking said section in its entirety and substituting the following:

"(0 the sentence for an unclassified misdemeanor shall be a definite sentence fixed by the court in accordance with the sentence specified in the law defining the offense. If no sentence is specified in such law, the sentence 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."

Section 3. Amend Title 11, Section 4216(d) by striking the words to that date" and substituting therefore the words "June 30, 1990".

Section 4. Amend Title 11, Section 4217 by striking subsections (a) and (b) in their entirety and substituting therefor the following:

"(a) In any case where the trial court has imposed an aggregate sentence of incarceration at Level V in excess of one year, the court shall retain jurisdiction to modify the sentence to reduce the level of custody or time to be served under the provisions of this section.

(b) The court may modify the sentence solely on the basis of an application filed by the Department of Correction for good cause shown which certifies that the release of the defendant shall not constitute a substantial risk to the community or himself."

Section 5. Amend Title 11, Section 4217(c) by striking the words "exception of" and substituting therefor the word "exceptional".

Section 6. Amend Title 11, Section 4217 by adding thereto a new subsection (f) to read as follows:

"(f) Nothing contained in this section shall be construed to limit the court's ability to modify a sentence within the scope of the trial court's duly promulgated rules."

Section 7. Amend Title 11, Section 859(a) by deleting all words after "Class G felony".

Section 8. Amend Title 11, Section 1336(b) by deleting all words after "Class G felony".

Section 9. Amend Title 11, Section 1336(d) by deleting all words after "Class G felony".

Section 10. Amend Title 11, Section 1336(r) by deleting all words after "Class A misdemeanor".

Section 11. Amend Title 11, Section 1361(b) by deleting subsection (b) in its entirety and substituting the following:

"(b) Obscenity is a Class E felony if a person sells, delivers or provides any obscene picture, writing, record or other representation or embodiment of the obscene to a person under the age of 18. In all other cases, obscenity is a Class G felony. In addition to the above penalties, upon conviction of obscenity involving live conduct as defined in Section 1364 of this Title, the court shall order the business or establishment which presented, displayed or exhibited such conduct closed for a period of 6 months."

Section 12. Amend Title 11, Section 1361(c) by deleting the words for Class G felony obscenity".

Section 13. Amend Title II, Section 1504(a) by deleting all words following "punished by imprisonment" and inserting thereafter the words "and pay a fine of not less than $25,000."

Section 14. Amend Title 16, Section 4752 by deleting the words "10 years" and substituting therefor the words "5 years".

Section 15. Amend Title 16, Section 4753 by deleting everything after the words "Class A misdemeanor".

Section 16. Amend Title 16, Section 4754(a) by deleting everything after the words "Class B misdemeanor".

Section 17. Amend Title 16, Section 4754(b) by deleting everything after the words "Class B misdemeanor".

Section 18. Amend Title 16, Section 4755(b) by deleting said section in its entirety and substituting therefor the following:

"(b) Any person who violates paragraph (a)(1), (a)(2), (a)(4) or (a)(5) of this section shall be guilty of a Class F felony. Any person who violates paragraph (a)(3) of this section shall be guilty of a Class A misdemeanor."

Section 19. Amend Title 16, Section 4756(b) by deleting everything after the words "Class F felony".

Section 20. Amend Title 16, Section 4757(c) by deleting the words "More than 1 year" and substituting therefor the words "more than 30 days".

Section 21. Amend Title 16, Section 4757(d) by deleting everything following the words "Class G felony".

Section 22. Amend Title 16, Section 4761(1) by deleting everything after the words "Class C felony".

Section 23. Amend Title 16, Section 4761(2) by deleting everything after the words "Class E felony".

Section 24. Amend Title 16, Section 4771 by deleting everything after the words "Class A misdemeanor".

Section 25. Amend Title 16, Section 4772 by deleting everything after the words "Class G felony".

Section 26. Amend Title 16, Section 4773 by deleting everything after the words "Class felony".

Section 27. Amend Title 16, Section 4774 by deleting everything after the words "unclassified misdemeanor".

Section 28. Amend Title 11, Section 4216(c) by striking said section in its entirety and substituting the following:

"(c) Where an Inmate is serving Level V (Incarceration) sentence(s) 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 an aggregate 3 years remaining on his prior sentence(s), the Court at the time of sentencing under the Truth in Sentencing Act may in its discretion suspend the remainder of the prior non-Truth in Sentencing Level V sentence(s), unless such sentence was a statutory mandatory term."

Section 29. Amend Title 11, Section 635 by adding, after the words "8 Felony.", the following: "Notwithstanding any provision of this Title to the contrary, the minimum sentence for a person convicted of Murder Second Degree in violation of this section shall be ten (10) years at Level V."

Section 30. Amend Title 11, Section 774 by adding, after the words "B Felony.", the following: "Notwithstanding any provision of this Title to the contrary, the minimum sentence for a person convicted of Unlawful Sexual Intercourse in the Second Degree in violation of this section shall be ten (10) years at Level V."

Section 31. Amend Title 11, Section 6532(d) by striking the words "Class B felony" and substituting In their place the words "Class B felony or Class C felony".

Section 32. Amend Title 11, Section 6537(b) as follows:

a). By deleting the words "Notwithstanding any other provision of this section or title to the contrary" and inserting in their place the words "With the exception of the authority granted under Section 4205(h) and 4205(1) of this Title".

b). By adding after the words "B felony sex offense" the words or C felony sex offense".

Section 33. Amend Title II, Section 4204(1) by adding the following at the end of said section:

"The 6-month transition period required by this Subsection may, at the discretion of the Court, be in addition to the maximum sentence of imprisonment established by the statute."

Section 34. Amend Title 11, Section 1326(a) by deleting all the words following "shall be guilty of and inserting thereafter the words "a Class A misdemeanor."

Section 35. Amend Title 11, Section 1326(b) by deleting all words following is guilty of and inserting thereafter the words "a Class B misdemeanor."

Section 36. Amend Title 11, Section 1253 by deleting the second paragraph in its entirety, replacing with the following:

"Escape after conviction shall be a Class D felony; provided however, that if the defendant uses force or the threat of force against another person or has a deadly weapon in his possession at the time of escape, it shall be a Class C felony. If the defendant inflicts injury upon another person during the escape or from the time of escape until such person Is again in custody, it shall be a Class B felony. Any sentence imposed upon conviction of escape after conviction shall not run concurrently with any other sentence."

Section 37. Amend Title 11, Section 4214 as follows:

a) Amend subsection (a) by deleting the words "may, in its discretion, impose a life sentence upon the person so convicted." and substituting in lieu thereof the following:

"may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted. Notwithstanding any provision of this Title to the contrary, any sentence so imposed pursuant to this subsection shall not be subject to suspension by the Court, and shall be served in its entirety at a full custodial Level V institutional setting without benefit of probation or parole, except that any such sentence shall be subject to the provisions of Sections 4205(h), 4217, 4381, and 4382 of this Title."

b) Amend Subsection (b) by adding the following language at the end thereof:

"Notwithstanding any provision of this Title to the contrary, any sentence imposed pursuant to this subsection shall not be subject to suspension by the Court, and shall be served in its entirety at a full custodial Level V institutional setting without benefit of probation, parole, earned good time or any other reduction."

Section 38. Except for Section 3 of this Act, which Section shall be effective

immediately, the provisions of this Act shall be effective at the same time and in the same manner as the provisions of 67 Delaware Laws, Chapter 130.

Approved July 13, 1990.