Opinion
I.D. No. 0211007210
Submitted: June 9, 2003;
Decided: July 2, 2003.
Upon consideration of the State's Motion to Dismiss petitioner's Appeal for lack of Jurisdiction — GRANTED.
ORDER
From the State's motion, defendant's response, and the papers in this matter it appears:
(1) After a trial in the Court of Common Pleas, petitioner Kathy Tucker ("Tucker") was convicted of Hindering an Investigation, and acquitted of Offensive Touching of a Law Enforcement Officer.
DEL. CODE ANN. tit. 11 Del. C. § 1244 (2001).
DEL. CODE ANN. tit. 11 Del. C. § 601 (2001).
(2) Following conviction, the Court sentenced Tucker to pay the cost of prosecution, pay a fine of $100.00 plus an 18% surcharge to the victims compensation fund, and to serve 6 months of Level I probation. The Court did not indicate any Level V incarceration be suspended for the Level I probation. Tucker filed this appeal claiming various legal errors in the Court below.
See Court of Common Pleas sentencing worksheet. The Court did not impose or suspend any Level V period of incarceration.
(3) The State has responded with a motion to dismiss on the basis that this Court's appellate jurisdiction "extends only to criminal cases in which the sentence is imprisonment exceeding one (1) month, or a fine exceeding One Hundred dollars ($100.00)."
State's Mot. Dismiss at 2 (internal quotations omitted).
(4) Tucker agrees that the $100.00 fine fails to meet the constitutional requirement, but claims that "the Court's [six month] Level I sanction is premised entirely on the Judge's authority to suspend a [six month] period of incarceration." Tucker argues that a suspended Level V sentence is implied, when not expressly ordered, upon imposition of a sentence of accountability Level I probation. Tucker presumes a fortiori, pursuant to Weaver v. State, "[w]hen a [d]efendant's Level V sentence is suspended entirely for probation at a lesser level, the defendant has been sentenced to "imprisonment" and is entitled to appeal . . ." if such sentence exceeds one month.
Def.'s Resp. at 2.
Weaver v. State, 779 A.2d 254, 259 (Del. 2001).
Def.'s Resp. at 3.
(5) A defendant has the right to appeal a criminal conviction and sentence from the Court of Common Pleas to this Court. The Delaware Constitution, however, expressly states that "there shall be an appeal to the Superior Court in all cases in which the sentence shall be imprisonment exceeding one (1) month, or a fine exceeding One Hundred Dollars ($100.00)." A sentence that does not meet the constitutional requirement is fatal to a defendant's desire to appeal.
See DEL. CODE ANN. tit. 11 Del. C. § 5301(c) (2001).
DEL. CONST. art. IV, § 28.
State v. Campbell, 190 A.2d 610, 611 (Del. 1963).
(6) Title 11 Del. C. § 4204 of the Delaware Code provides:
(c) When a person is convicted of any offense other than a Class A felony the court may take the following action:
(1) Impose a sentence involving an Accountability Level I sanction. Such sanctions include imposition of a fine as provided by law for the offense or placement of the offender upon unsupervised probation with or without special conditions, or with or without the imposition of a fine . . . (7) In Weaver v. State, the Delaware Supreme Court announced that a sentence of Level V incarceration greater than a month, but suspended for lesser probation, meets the constitutional requirement for an appeal to the Superior Court. The Supreme Court reasoned that the General Assembly intended to create "a continuum of authorized sentencing sanctions ranging in severity from accountability Level I to accountability Level V. The levels of sentencing are distinguished by the amount of control the Department of Correction exercises over a convicted offender." A defendant's Level V sentence, suspended entirely for probation at a lesser level, constitutes imprisonment invoking the appellate jurisdiction of the Superior Court, if the sentence exceeds one month; otherwise "the defendant will never have the opportunity to challenge directly the criminal conviction that forms the underlying basis of the jail sentence." (8) When a violation of probation occurs, the sentencing court may at that time order the violator to serve the sentence originally imposed for the offense, or any lesser sentence. "The sentencing court may not, However, either enlarge a period of probation or impose a sentence greater than that originally imposed." (9) Given the continuum of permissible sentences, the Court of Common Pleas opted to place Tucker on Level I probation only. The court may not later impose a greater sentence that includes incarceration. (10) Having failed to meet the minimum constitutional requirements for an appeal, the State's motion to dismiss is GRANTED.
DEL. CODE ANN. tit. 11 Del. C. § 4204(c)(1) (2001).
Weaver v. State, 779 A.2d 254 (Del. 2001).
Id., at 258-59.
Id., at 258 (citing Delaware Sentencing Accountability Commission, Truth in Sentencing Benchbook, at 2 (2000)) (internal citations and quotes omitted).
Weaver, 799 A.2d at 258.
See Baylis v. State, 642 A.2d 836, 836 (Del. 1993) (citing DEL. CODE ANN. tit. 11 Del. C. § 4334(c) stating "If the violation [of probation] is established, the court may continue or revoke the probation or suspension of sentence, and may require the probation violator to serve the sentence imposed, or any lesser sentence . . .").
Baylis v. State, 642 A.2d at 836; see e.g. Ingram v. State, 567 A.2d 868, 869 (Del. 1989), Tiller v. State, 257 A.2d 385, 387 (Del. 1969).
The Court notes that on May 1, 2003, the General Assembly added to Del. Code Ann. tit. 11 Del. C. § 4204(c), including the paragraph:
(10) Whenever restitution is ordered . . . and if deemed appropriate to ensure or facilitate the collection of restitution from the defendant or if otherwise required by statute, the court may impose a sentence involving an Accountability Level I — Restitution Only sanction. Such a sanction shall be limited to the placement of the offender upon unsupervised probation, and the conditions of such probation shall be limited to those that are necessary to ensure or facilitate the collection of restitution.
See 2003 Del. Laws Ch. 27 (S.B. 50) (First Regular Session of the 142nd General Assembly).
IT IS SO ORDERED.