CHAPTER 481

FORMERLY

SENATE BILL NO. 340

AS AMENDED BY SENATE AMENDMENT NOS. 1 & 2 AND

HOUSE AMENDMENT NO.

AN ACT TO AMEND TITLE 10 AND TITLE 11 OF TI-IE DELAWARE CODE RELATING TO APPEALS BY THE STATE IN CRIMINAL CASES.

BE IT ENACTED BY TI-IE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §9902 of Title 10 of the Delaware Code by adding thereto new subsections to be designated as (d), (e), (I) and (g) to read as follows:

"(d) The State shall have an absolute right to appeal to an appellate court from any order entered in a lower court which grants an accused any of the following: a new trial or judgment of acquittal after a verdict; a modification of a verdict; an arrest of judgment; relief in any post-conviction proceeding or in any action collateral attacking a criminal judgment; or a new punishment hearing in a capital case after the court has imposed a sentence of death: or any order or judgment declaring any act of the General Assembly, or any portion of any such act. to be unconstitutional under either the Constitution of the United States or the State of Delaware. inoperative or unenforceable; except that no appeal shall lie where otherwise prohibited by the double jeopardy clause of the Constitutions of the United States or of this State.

(e) The State shall have an absolute right to appeal to an appellate court any ruling of a lower court on a question of law or procedure adverse to the State in any ease in which the accused was convicted and appeals from the judgment, except that the decision or result of the State's appeal shall not affect the rights of the accused unless the accused, on his or her appeal. is awarded a new trial or a new sentencing hearing. Once the State perfects its cross-appeal. the appellate court shall review and rule upon the questions presented therein regardless of the disposition of the defendant's appeal.

(f) The State shall have an absolute right to appeal any sentence on the grounds that it is unauthorized by, or contrary to, any statute or court rule, in which case the decision or result of the State's appeal shall affect the rights of the accused.

(g) Any appeal brought by the State pursuant to subsection (e) or (f) of this section shall be personally authorized by either the Attorney General or the Chief Deputy Attorney General.-

Section 2. Amend §9904 of Title 10 of the Delaware Code by adding after the phrase "appealed from" and before the "." the following:

", or, in any case in which the State elects to prosecute a cross appeal. notice of the cross appeal shall be filed within 30 days from the filing of a notice of appeal by the defendant"

Section 3. Amend Chapter 99 of Title 10 of the Delaware Code by adding thereto a new section. said new section to be designated as §9905, to read as follows:

"§9905. Principles of Construction

The provisions of this Chapter shall be liberally construed so as to afford the State the broadest possible right to appeal in a criminal ease, but only to the extent permitted by the Constitutions of the United States and the State of Delaware."

Section 4. Amend §1053(a)( I) of Title 10 of the Delaware Code by redesignating the existing text thereof as subparagraph (A) and by adding thereto new subparagraphs to be designated as (B), (C), (D) and (E), to read as follows:

"(B) Notwithstanding any section of this Chapter to the contrary, the State shalt have an absolute right to appeal to an appellate court from any order of the Family Court which grants an accused any of the following: a new trial or judgment of acquittal after a verdict or an adjudication of delinquency: a modification of a verdict or an adjudication of delinquency: an arrest of judgment: relief in any post-conviction proceeding or in any action collaterally attacking a criminal judgment or an adjudication of delinquency, or any order or judgment declaring any act of the General Assembly. or any portion of such act, to be unconstitutional under either the Constitution of the United States or the State of Delaware, inoperative or unenforceable, except that no appeal shall lie where otherwise prohibited by the double jeopardy clause of the Constitution of the United States or of this State.

(C) Notwithstanding any section of this Chapter to the contrary, the State shall have an absolute right to appeal to an appellate court any ruling of the Family Court on a question of law or procedure adverse to the State in any case in which the accused was convicted or adjudicated delinquent and appeals from the judgment, except that the decision or result of the State's appeal shall not affect the rights of the accused unless the accused, on his or her appeal, is awarded a new trial or a new sentencing hearing. Once the State perfects its cross-appeal. the appellate court shall review and rule upon the questions presented therein regardless of the disposition of the accused's appeal.

(C) -Notwithstanding any section of this Chapter to the contrary, the State shall have an absolute right to appeal any sentence on the grounds that it is unauthorized by, or contrary to, any statute or court rule, in which case the decision or result of the State's appeal shall affect the rights of the accused.

(D) Any appeal brought by the State pursuant to subparagraphs (C) or (D) of this subsection shall be personally authorized by either the Attorney General or the Chief Deputy Attorney General."

Section 5. Amend §1053(c) of Title 10 of the Delaware Code by adding after the phrase "appealed from" and before the "." The following:

", or, in any case in which the State elects to prosecute a cross appeal, notice of the cross appeal shall be filed within 30 days from the filing of a notice of appeal by the defendant.-

Section 6. Amend *1053 of Title 10 of the Delaware Code by adding thereto a new subsection (e), to read as follows:

"(e) The provisions of this section shall be liberally construed so as to afford the State the broadest possible right to appeal in a criminal case, but only to the extent permitted by the Constitution oldie United States and the State of Delaware.-

Section 7. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end of the provisions of the Act are declared to be severable.

Section 8. The provisions of this Act shall be effective immediately upon enactment, except that the provisions of Section I which amend § 9902 of Title 10 of the Delaware Code by adding a new subsection (d) thereto shall not be effective as to the State's right to appeal to the Supreme Court unless and until Article IV of the Constitution of the State of Delaware is appropriately amended so as to confer jurisdiction upon the Supreme Court over the matters described in said new subsection.

Approved July 10, 1996