SENTENCING THRU RELEASE
Delaware's sentencing structure is often confusing. If you have any
questions about the sentencing order or the possibilities for early
release, you should contact the prosecutor or the Victim/Witness
program.
Remember you have the right
to be in contact with the authorities concerning what happens to the
offender after conviction.
PRESENTENCE
INVESTIGATION After
conviction through a plea agreement or trial, the Judge may order a
Presentence Investigation Report. A full Presentence Investigation
Report includes a summary of the offense, the offender's background
and victim loss and impact information. However, there are times
when a partial report is ordered which only includes the offender's
criminal history.
If a full Presentence Report is
ordered, you may receive a Victim Loss/Impact form from the
Presentence Investigator. This is an opportunity for you to make
people in the system aware of the impact a crime has had on your
life. You may also call the Presentence Investigator to provide
additional information.
SENTENCING Felony sentencings are held in Superior
Court. A sentence may involve a period of time on probation, on home
confinement, in a halfway house, in prison and any other special
conditions. Many sentencing hearings are held approximately 60 days
after a finding of guilt. Sometimes sentencings are held
immediately, i.e., right after a plea is accepted or a conviction at
trial. If this occurs, no Presentence Investigation is ordered and
you will not be sent a Victim Loss/Impact form. Therefore, it is
important to contact the prosecutor soon after indictment or filing
of an information to give them your impact and restitution
information. If an immediate sentencing is held, the prosecutor can
speak on your behalf.
Victims of certain crimes may speak
at the sentencing hearing. Ask the prosecutor if this is possible in
your case. The sentencing hearing is open to the public.
APPEALS
Upon conviction at trial, the defendant has the right to appeal
various aspects of the case. Appeals usually claim a violation of
due process. This means that a mistake in the procedure was made
during arrest, investigation or the trial. The court which decides
the appeal can do several things:
1) overturn the conviction, 2) send
the case back for a new trial, 3) send the case back for
re-sentencing, or 4) affirm the conviction. Most appeal work is done
through written legal briefs without hearings in court. If the
defendant has accepted a plea agreement and did not go to trial,
he/she has no right to an appeal.
SENTENCE MODIFICATIONS The defendant may also file
a motion for sentencing reduction which must be filed within 120
days. This is to request that the sentence be reduced. A hearing is
not required. Judges sometimes grant a motion for sentence reduction
after the 120 days has expired. You can request to be notified of
any sentence modifications.
Also, under the Truth in Sentencing
guideline for exceptional rehabilitation, the Department of
Correction can petition the court to modify the sentence of an
offender. More information about this procedure is available under
the Truth In Sentencing section of the booklet.
Unfortunately, victims do not have
the right of appeal through the court process if they are
dissatisfied with the decision of the prosecutor, jury or judge.
TRUTH IN SENTENCING Truth In Sentencing (TIS) is
the sentencing structure that went into effect in 1990. It applies
only to those offenders sentenced after 1990. Truth in Sentencing is
designed so that more non-violent offenders are placed in
alternatives to incarceration, while violent offenders spend a
longer time in prison. All prison sentences of a year or more will
be followed by at least six (6) months of structured community
supervision. TIS changed the law in several ways.
TIS is structured so offenders will be
incarcerated for the length of the sentence. Under Truth in
Sentencing, the amount of good/merit time an offender can earn in a
year is 90 days. Therefore, if a person receives a two year
sentence, they could possibly be released in one year and nine
months with earned good/merit time.
Under Truth in Sentencing, the
Department of Correction is authorized to seek modification of an
offender's sentencing. Such a request must be based on "good
cause," which can include an offender's exceptional
rehabilitation while in prison, serious illness, prison overcrowding
and other factors. The Department of Correction must certify
eligibility through an internal process. The recommendation is then
forwarded to the Parole Board who will do their own review. The
recommendation of the Board is then sent back to the original
sentencing judge who may decide to have a hearing or make a decision
based on the information provided. The judge makes the final
decision on the sentencing modification. This usually is done by
documentation and/or reports and is not open to the public.
SENTAC SENTENCING LEVELS In
Delaware, the General Assembly created the Sentencing Accountability
Commission (SENTAC) to study and recommend a practical solution to
the problems of the prison system. SENTAC developed a new system of
sentencing standards designed to incarcerate violent offenders while
providing alternatives for non-violent offenders.
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