CHAPTER 311

FORMERLY

SENATE BILL NO. 294

AS AMENDED BY SENATE AMENDMENT NO. 1 AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 42, OF TITLE 11, DELAWARE CODE RELATING TO THE EARLY RELEASE FROM INCARCERATION OF CONVICTED OFFENDERS.

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

Section 1. Amend §4217 (d) of Title 11 of the Delaware Code by striking said subsection in its entirety, and substituting in lieu thereof the following:

"(d) Any application filed by the Department of Correction under this Section shall be filed with the Board of Parole. The Board of Parole shall have the authority to promulgate reasonable regulations concerning the form and content of said applications. The Board of Parole may require the Department of Corrections to provide it with any information in the possession of the Department reasonably necessary for the Board to assess such applications.

(2) Following the receipt of any application for modification filed by the Department of Corrections which conforms with any regulations and requirements of the Board of Parole promulgated pursuant to paragraph (1) of this subsection, the Board of Parole shall hold a hearing under the provisions of §4350 (a) of this Title for the purpose of making a recommendation to the trial court as to the approval or disapproval of the application. This hearing shall not be held unless written notice of the hearing is provided to the Attorney General's Office at least 30 days prior to scheduled hearing date. A copy of the Department of Correction's application for modification shall be provided to the Attorney General's Office along with written notice of the hearing date.

(1) Following the hearing described in paragraph (2) of this subsection, the Board of Parole may reject an application for modification if it determines that the defendant constitutes a substantial risk to the community, or if it determines that the application is not based on good cause. Notwithstanding any provisions of this Section to the contrary, any application rejected pursuant to this paragraph shall not be forwarded to the Superior Court, and any offender who is the subject of such rejected application shall not be the subject of a subsequent application for modification for at least one year, except in the case of serious medical illness or infirmity of said offender.

(d)(4) Only in those cases where the Board by a majority vote recommends a modification of the sentence shall the application be submitted to the Court for consideration."

Section 2. Amend §4217 (e) of Title 11 of the Delaware Code by adding after the last sentence thereof the following:

"The Court shall not act upon the application without first providing the Attorney General's Office with a reasonable period of time to be heard on the matter. Should the Court deny the application because of a determination that the defendant constitutes a substantial risk to the community, or because it determines that the application lacks good cause, the defendant who is the subject of the denied application shall not be the subject of a subsequent application for modification for at least one year, except in the case of serious medical illness or infirmity of the defendant."

Section 3. Amend §4217 of Title 11 of the Delaware Code by redesignating the existing subsection (f) thereof as subsection (g), and by adding to said Section a new subsection (f) to read as follows:

"(f) Notwithstanding any provision of this Section to the contrary, in the case of any offender who is serving a sentence of incarceration at Level V imposed pursuant to a conviction for any crime, the Court may order

that said offender shall be ineligible for sentence modification pursuant to this Section until a specified portion of said Level V sentence has been served, except that no offender who is serving a sentence of incarceration at Level V imposed pursuant to a conviction for a violent felony in Title 11 of this Code shall be eligible for sentence modification pursuant to this Section until he or she has served at least one-half of the originally imposed Level V sentence, and no offender who is serving a statutory mandatory term of incarceration at Level V imposed pursuant to a conviction for any offense set forth In Title 11 of this Code shall be eligible for sentence modification pursuant to this Section during the mandatory portion of said sentence. Nothing in this paragraph shall preclude a sentence modification pursuant to this Section which is based solely upon serious medical illness or infirmity of the offender."

Approved July 8, 1994.