TITLE 11

Crimes and Criminal Procedure

Criminal Procedure Generally

CHAPTER 45. APPEAL; STAY OF EXECUTION; POSTCONVICTION REMEDY


In a criminal case, judgment shall not be reversed for any clerical misprision or formal defect, if the record contains substantial ground for judgment.

The omission of the words "with force and arms'' shall be deemed a defect in form merely.

Code 1852, § 2968; Code 1915, § 4835; Code 1935, § 5326; 11 Del. C. 1953, § 4501.;

No writ of error or writ of certiorari issuing from the Supreme Court in any criminal cause shall operate as a stay of execution of the sentence of the trial court unless such writ of error or writ of certiorari be sued out within 30 days from the date of final judgment in the court below, and unless the plaintiff in error obtains from the trial court (or, if the trial court refuses, then from 1 of the Justices of the Supreme Court) a certificate that there is reasonable ground to believe that there is error in the record which might require a reversal of the judgment below, or that the record presents an important question of substantive law which ought to be decided by the Supreme Court, and unless the plaintiff in error furnishes bond to the State, with surety to be approved and in an amount to be fixed by 1 of the Justices of the Supreme Court, conditioned as prescribed by rule of court. In cases where sentence of life imprisonment has been imposed, there shall be no stay of execution, and no supersedeas bond taken or allowed. In cases where sentence of death has been imposed, the trial court, if the certificate provided for in this section has been granted, may stay the execution of the death penalty pending the determination of the cause by the Supreme Court, but the defendant below shall not be released from custody.

Code 1915, § 4847B; 35 Del. Laws, c. 231; Code 1935, § 5327; 11 Del. C. 1953, § 4502.;

(a) Excepting those cases in which the sentence for the conviction of a crime was imprisonment not exceeding 1 month, or a fine not exceeding $100, any person convicted before any alderman or mayor of any incorporated city or town in this State for the violation of any city or town ordinance may appeal from such conviction to the Court of Common Pleas of the county in which the person has been so convicted, upon giving bond to the State with surety satisfactory to the alderman or mayor before whom such person was convicted, binding the person taking the appeal to appear before the Court. Notice of such an appeal shall be given to such alderman or mayor within 15 days from the time of conviction, counting the date of conviction as 1, and the bond with surety shall be filed within 15 days. Such appeal shall be prosecuted and the proceedings therein shall be had as in an appeal from a conviction before a justice of the peace in the case of a violation of the laws relating to the operation of motor vehicles.

(b) In all criminal cases in all incorporated cities or towns where a mayor or alderman has jurisdiction to hear and determine the matter and the accused has the right to elect to have the case tried by the Court of Common Pleas, every mayor or alderman shall advise such accused of the right to so elect, before the mayor or alderman shall have jurisdiction to try the case.

46 Del. Laws, c. 107; 11 Del. C. 1953, § 4503; 58 Del. Laws, c. 62; 61 Del. Laws, c. 206, § 1; 69 Del. Laws, c. 423, § 15; 70 Del. Laws, c. 186, § 1.;

(a) Except at a time when direct appellate review is available, and subject to the time limitations set forth in this subsection, a person convicted of a crime may file in the court that entered the judgment of conviction a motion requesting the performance of forensic DNA testing to demonstrate the person's actual innocence. Any such motion may not be filed more than 3 years after the judgment of conviction is final. The motion may be granted if:

(1) The testing is to be performed on evidence secured in relation to the trial which resulted in the conviction;

(2) The evidence was not previously subject to testing because the technology for testing was not available at the time of the trial;

(3) The movant presents a prima facie case that identity was an issue in the trial;

(4) The movant presents a prima facie case that the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, degraded, contaminated, altered or replaced in any material aspect;

(5) The requested testing has the scientific potential to produce new, noncumulative evidence materially relevant to the person's assertion of actual innocence; and

(6) The requested testing employs a scientific method which is generally accepted within the relevant scientific community, and which satisfies the pertinent Delaware Rules of Evidence concerning the admission of scientific testimony or evidence.

(b) Except at a time when direct appellate review is available, a person convicted of a crime who claims that DNA evidence not available at trial establishes the petitioner's actual innocence may commence a proceeding to secure relief by filing a motion for a new trial in the court that entered the judgment of conviction. The court may grant a new trial if the person establishes by clear and convincing evidence that no reasonable trier of fact, considering the evidence presented at trial, evidence that was available at trial but was not presented or was excluded, and the evidence obtained pursuant to subsection (a) of this section would have convicted the person.

(c) The court shall impose reasonable conditions on the testing designed to protect the state's interests in the integrity of the evidence and the testing process.

(d) Any motion filed pursuant to this section shall be served upon the State. The State shall have an absolute right to appeal to an appellate court any order granting a motion for a new trial pursuant to this section.

(e) The cost of DNA testing ordered under subsection (a) of this section shall be borne by the State or the applicant, as the court may order in the interests of justice, if it is shown that the applicant is not indigent and possesses the means to pay.

72 Del. Laws, c. 320, § 3.;