CHAPTER 598

FORMERLY

SENATE BILL NO. 438

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO CERTAIN CRIMES COMMITTED BY JUVENILES

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

Section 1. Amend §1010(a)(1) of Title 10 of the Delaware Code by adding the phrase ".unlawful sexual penetration in the first degree" between the phrase "unlawful sexual intercourse in the first degree" and the phrase "or kidnapping" as they appear in said paragraph.

Section 2. Amend §1010(a) of Title 10 of the Delaware code by redesignating paragraph (3) thereof' as paragraph 14)", and by adding to said subsection a new paragraph (3) to read as follows:

"(3) The child has previously been adjudicated delinquent or one or more offenses which would constitute a felony were he or she charged as an adult under the laws of this State, and has reached his or her 16th birthday and the acts which form the basis of the current allegations constitute one or more of the following offenses: conspiracy first degree, unlawful sexual intercourse second degree, assault first degree, arson first degree, burglary first degree, robbery first degree. trafficking in marijuana, cocaine, illegal drugs. methamphetamine. L.S.D. or designer drugs (where the child is alleged to have committed acts constituting a violation of either subparagraph b. or c. of paragraph ( ). (2), (3). (4). (5). (6) or ( 7) of §4753A(a) of 'fide 16 of the Delaware ('ode, or a violation of subparagraph a. of paragraph 8 of said subsection), or any attempt to commit any of the offenses set firth in this paragraph,-

Section 3. Amend §101(1 of title 10 of the Delaware Code by adding thereto a new subsection to be designated as subsection (d) which shall read as follows:

"(d) Notwithstanding any provision of this section or title to the contrary. when a child has reached his or her 15th birthday and is thereafter charged with being delinquent by having committed any offense which would constitute a felony were he or she charged as an adult under the laws of this State. said offense occurring while the child was an escapee from any Level IV or V facility operated for or by the Department of Services for Children. Youth and Their Families. upon notion of the Attorney General, or upon its own motion, the Court shall defer further proceedings in the Family Court and shall conduct a hearing to determine whether the child should he referred to the Superior Court for trial as an adult. It'. at the conclusion of the hearing, the Court finds that evidence demonstrates that there is a fair likelihood that the child may he convicted of the charge or charges, it shall refer the child to the Superior Court for trial as an adult. If. at the conclusion of the hearing, the Court determines that there is no fair likelihood of conviction the case shall remain within the jurisdiction of the Family Court. subject to all other provisions of this Section and Fide.-

Section 4. Amend §10 1(b) of Title 1() of the Delaware Code by striking the word "may it appears between the phrases "the Superior Court" and -hold a hearing as they appear in the second sentence of said section. and by substituting in lieu thereof the word "shall.

Section 5. Amend §1011 of fide 10 of the Delaware Code by redesignating subsections le) and (LI) thereof as subsections (d) and (e). and by adding to said section a new subsection (e) to read as follows:

"(c)(1) The hearing described in subsection (b) of this section shall be held by the Superior Court only upon timely application of the defendant. Such application shall be deemed timely if made within 30 days of arraignment. No enlargement of said time period shall be permitted. Failure of the defendant to make application within the 30 day period shall constitute a waiver of his or her rights under this section.

(2) The hearing shall be held by the Superior Court as soon after such application is made as is practicable. Within 90 days of the arraignment, the Superior Court shall announce its decision as to whether the ease is to be transferred to the Family Court; however, the Court's failure to do so shall not be considered as providing a basis for transferring the case to the Family Court, for dismissing the charges, or for providing any other form of relief."

Section 6. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act arc declared to be severable.

Section 7. Any action, case, prosecution, trial or other legal proceeding in progress at the time of the enactment into law of the provisions of this Act, no matter the stage of the proceeding, shall be preserved and shall not become illegal or terminated upon the effective date of this Act. The prior law shall remain in full force and effect as to all such proceedings in progress at the time of enactment of this Act.

Section 8. The provision of Section 4, 5, 6, 7 and 8 of this Act shall be effective immediately upon enactment. The provisions of the remaining sections of this Act shall he effective with respect to all crimes or acts of delinquency committed after January 15, 1998.

Approved July 31, 1996