CHAPTER 453

FORMERLY

SENATE BILL NO. 426

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO PROBATION BEFORE JUDGMENT.

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

Section 1. Amend §4218(a) of Title 11 of the Delaware Code by striking the phrase “For a violation or misdemeanor offense under Titles 4, 7, 11, or 21” as it appears in the first sentence of said subsection, and by substituting in lieu thereof the phrase “Subject to the limitations set forth in this section, for a violation or misdemeanor offense under Titles 4, 7, or 11, or for any violation or misdemeanor offense under Title 21 which is designated as a motor vehicle offense subject to voluntary assessment by §709 of Title 21,”.

Section 2. Further Amend §4218(a) of Title 11 of the Delaware Code by striking the phrase “when such offense is the first such offense on an individual’s record,” as it appears in the first sentence of said subsection.

Section 3. Further Amend §4218(a) of Title 11 of the Delaware Code by striking the phrase “prosecuting agency” as it appears in the first sentence of said subsection, and by substituting in lieu thereof the phrase “the State”.

Section 4. Further Amend §4218(a) of Title 11 of the Delaware Code by adding between the phrases “as may be appropriate.” and “The terms and conditions may include” as they appear in said subsection the following:

“The terms and conditions of any Probation Before Judgment shall include the following requirements: 1) the defendant shall provide the court with his or her current address; 2) the defendant shall promptly provide the court with written notice of any change of address; and 3) the defendant shall appear if summoned at any hearing convened for the purpose of determining whether the defendant has violated or fulfilled the terms and conditions of Probation Before Judgment.”

Section 5. Further Amend §4128(a) of Title 11 of the Delaware Code by adding immediately after the last sentence of said subsection the following:

“The length of the period of Probation Before Judgment shall be fixed by the court, but in no event shall the total period of Probation Before Judgment exceed the maximum term of commitment provided by law for the offense or 1 year, whichever is greater.”

Section 6. Amend §4218(c) of Title 11 of the Delaware Code by striking said subsection in its entirety, and by substituting in lieu thereof the following:

“(c)(1) Notwithstanding any provision of this section to the contrary, no person shall be admitted to Probation Before Judgment if:

(A) the person is currently serving a sentence of incarceration, probation parole or early release of any type imposed for another offense; or

(B) the person is charged with any offense set forth in Title 11 of this Code, and has previously been convicted of any violent felony; or

(C) the person is charged with any offense set forth in Title 11 of this Code, and has previously been convicted of any non-violent felony with ten years of the date of the commission of the alleged offense; or

(D) the person is charged with any offense set forth in Title 11 of the Code, and has previously been convicted of any misdemeanor offense within five years of the date of the commission of the alleged offense; or

(E) the person is charged with any offense set forth in Title 4 or 7 of this Code, and has been previously convicted of any offense set forth in Titles4 or 7 of this Code within five years of the date of the commission of the alleged offense; or

(F) the person is currently charged with any offense set forth in §709 of Title 21 of this Code, and has been previously convicted of any offense set forth in Title 21 of this Code within five years of the date of the commission of the alleged offense.

(2) For the purposes of this subsection, the following shall also constitute a previous conviction:

(A) a conviction under the laws of another State, the United States or any territory of the United States of any offense which is the same as, or equivalent to, any offense specified in paragraph (1) of this subsection; or

(B) an adjudication of delinquency; or

(C) any adjudication, resolution, disposition or program set forth in §4177B(e)(1) of Title 21 of this Code.”

Section 7. Amend §4218(f) of Title 11 of the Delaware Code by striking the phrase “shall discharge the person from probation.” as it appears in the first sentence of said subsection, and by substituting in lieu thereof the following:

“shall enter an order discharging the person from probation. The burden shall be upon the defendant to demonstrate that the terms and conditions of probation have been fulfilled.”

Section 8. Amend §4218 of Title 11 of the Delaware Code by adding a new subsection thereto be designated as subsection “(g)”, to read as follows:

“(g) Notwithstanding any provision of this section to the contrary, the court shall not admit a defendant to Probation Before Judgment nor otherwise apply any provision of this section unless the defendant first gives written consent to the court permitting any hearing or proceeding pursuant to this section to occur in the defendant’s absence if: 1) timely notice of the hearing or proceeding is sent or delivered to the address provided by him or her pursuant to subsection (a) of this section; and 2) the defendant fails to appear at said proceeding. In the event that a defendant fails to appear at any hearing or proceeding pursuant to this section, the court may proceed in the defendant’s absence if it first finds that timely notice of the hearing or proceeding was sent or delivered to the address provided by the defendant pursuant to subsection (a) of this section. Nothing in this subsection shall limit the power of the Court to hold a hearing to determine whether a defendant is in violation of the terms of his or her probation.”

Approved July 18, 2000