Subchapter I. General Provisions
TITLE 11
Crimes and Criminal Procedure
Criminal Procedure Generally
CHAPTER 41. FINES, COSTS, PENALTIES AND FORFEITURES
Subchapter I. General Provisions
§ 4101. Payment of fines, costs and restitution upon conviction.
(a) On conviction upon indictment or information for any crime or offense, all the costs shall be paid by the party convicted.
(b) Immediately upon imposition by a court, including a justice of the peace, of any sentence to pay a fine, costs, restitution or all 3, the same shall be a judgment against the convicted person for the full amount of the fine, costs, restitution or all 3, assessed by the sentence. Such judgment shall be immediately executable, enforceable and/or transferable by the State or by the victim to whom such restitution is ordered in the same manner as other judgments of the court. If not paid promptly upon its imposition or in accordance with the terms of the order of the court, or immediately if so requested by the State, the clerk or Prothonotary shall cause the judgment to be entered upon the civil judgment docket of the court; provided, however, that where a stay of execution is otherwise permitted by law such a stay shall not be granted as a matter of right but only within the discretion of the court. If the court imposing any sentence to pay a fine, costs, restitution or all 3 has no civil docket for the entry of a judgment, then such court may immediately transfer such judgment to the civil judgment docket of an appropriate court, as shall be determined by the court imposing such sentence. Judgments docketed pursuant to this subsection shall be exempt from the provisions of § 4711 of Title 10 which mandate the expiration of judgments, and which require the renewal of such judgments.
(c) The provisions of this section are cumulative and shall not impair any judgment given upon any conviction.
(d) In addition to, and at the same time as, any fine, penalty or forfeiture is assessed to any criminal defendant or any child adjudicated delinquent, there shall be levied an additional penalty of $1.00 imposed and collected by the courts for crimes or offenses as defined in § 233 of this title. When a fine, penalty or forfeiture is suspended, in whole or in part, the penalty assessment shall not be suspended.
(1) Upon collection of the penalty assessment, the same shall be paid over to the Prothonotary or clerk of courts, as the case may be, who shall collect the same and transmit it to the State Treasury to be deposited in a separate account for the administration of this subsection, which account shall be designated the "Videophone Fund," which is hereby created. This fund is to be administered by the Criminal Justice Council. Funds shall be utilized to cover line charges, maintenance costs and purchase and upgrade of videophone systems used by state and local agencies in the criminal justice system.
(2) For each fiscal year, if the balance in the Videophone Fund exceeds $250,000, said funds shall be transferred to the General Fund of the State of Delaware on June 30. The Criminal Justice Council shall submit a detailed spending plan for the use of the videophone funds to the Director of the Office of Management and Budget and Controller General no later than September 30 of each fiscal year. No funds shall be expended until the plan is approved by the Director of the Office of Management and Budget and the Controller General.
(3) The courts may expunge the record of any videophone assessment which remains uncollected for a period in excess of 3 years.
(e)(1) If any school teacher or administrator who holds a license or certificate under Title 14 or who is a teacher or administrator in a charter school but is exempt from licensing under § 507(c) of Title 14 or is a teacher or administrator employed by any state agency or under contract to a state agency is convicted of a violation of § 904(c) of Title 4 as a felony offense in this title, any offense in Chapter 47 of Title 16, and/or any offense in the Delaware Code that is a crime against a child, or a similar statute of another state, commonwealth or the District of Columbia, the court shall forward a copy of the conviction data to the employing school district's superintendent, school person-in-charge or state agency head.
(2) If the arrest and conviction occurs outside the State of Delaware, the teacher or administrator shall notify the superintendent, school person-in-charge or state agency head by providing copies of the conviction documents and sentence.
A teacher or administrator who fails to comply with paragraph (e)(2) of this section shall be guilty of a violation.
(f) In addition to, and at the same time as, any fine, penalty or forfeiture is assessed to any criminal or traffic defendant or any child adjudicated delinquent, there shall be levied an additional penalty of $1.00 imposed and collected by the courts for crimes or offenses as defined in § 233 of this title. When a fine, penalty or forfeiture is suspended, in whole or in part, the penalty assessment shall not be suspended.
(1) Upon collection of the penalty assessment, the same shall be paid over to the prothonotary or Clerk of Courts, as the case may be, who shall collect the same and transmit it to the State Treasury to be deposited in a separate account for the administration of this subsection, which account shall be designated the "DELJIS Fund", which is hereby created. The Fund is to be administered by the DELJIS Director. Funds shall be utilized to cover line charges, maintenance costs and upgrading of software and hardware that comprise the system known as the Criminal Justice Information System (CJIS) utilized by state and local law-enforcement agencies in addition to all agencies designated as "Criminal Justice Agencies".
(2) For each fiscal year, if the balance in the DELJIS Fund exceeds $250,000, said funds shall be transferred to the General Fund of the State on June 30. The DELJIS Director shall submit a detailed spending plan for the use of the DELJIS funds to the State Budget Director and Controller General no later than September 30 of each fiscal year. No funds shall be expended until the plan is approved by the State Budget Director and the Controller General.
(g)(1) In addition to, and at the same time as any fine, penalty or forfeiture is assessed to a criminal defendant, recipient of a civil offense, or any child adjudicated delinquent, there shall be levied an additional surcharge of 50% of the fine for the Transportation Trust Fund imposed and collected for any violations of Title 21.
(2) For fiscal years ending prior to July 1, 2008, no more than $1.5 million of the surcharge collected under this Section shall be deposited into the Transportation Trust Fund. Any amount in excess of $1.5 million collected prior to July 1, 2008, shall be deposited into the General Fund.
(3) If a fine or penalty is waived in whole or in part, the court may, in its discretion, waive up to the same percentage of the assessment.
Code 1852, §§ 2939-2941; Code 1915, § 4816; Code 1935, § 5304; 11 Del. C. 1953, § 4101; 57 Del. Laws, c. 508, §§ 1, 2; 63 Del. Laws, c. 140, § 1; 63 Del. Laws, c. 141, § 6; 70 Del. Laws, c. 461, § 1; 71 Del. Laws, c. 43, § 2; 71 Del. Laws, c. 387, § 1; 74 Del. Laws, c. 27, §§ 7, 8; 74 Del. Laws, c. 68, § 70; 75 Del. Laws, c. 88, § 21(6); 75 Del. Laws, c. 424, § 1; 76 Del. Laws, c. 77, § 1; 76 Del. Laws, c. 133, § 1.;
§ 4102. Payment of costs upon acquittal.
(a) If, upon indictment or information, the defendant is acquitted, the costs shall be paid by the county.
(b) In cases of surety of the peace (which are herein deemed to be cases of a criminal nature) the court may order that the costs shall be paid by the defendant or by the prosecutor or by the county, as it deems just.
Code 1852, §§ 2942, 2943; 20 Del. Laws, c. 596; Code 1915, § 4817; Code 1935, § 5305; 11 Del. C. 1953, § 4102; 63 Del. Laws, c. 140, § 1.;
§ 4103. Refund of fines upon reversal of conviction.
(a) The State Treasurer shall remit to each person, or to the attorney of such person, who has paid a fine upon a conviction which was later set aside by a court of higher jurisdiction upon a certiorari or appeal from the lower court.
(b) The State Treasurer shall pay the refund upon proper voucher drawn by the person, or by the attorney of such person, upon whom the fine was originally imposed when the voucher is accompanied by a certificate of the Prothonotary of any of the several counties showing that the conviction of the lower court upon which the fine was imposed has been set aside by a higher court.
(c) The State Treasurer shall remit the amount of any fine or costs to each person, or the attorney of such person, who has paid a fine upon conviction before a justice of the peace, which conviction was later set aside by the same Justice of the Peace Court. The State Treasurer shall pay such refund upon proper voucher drawn by such person, or by the attorney of such person, upon whom the fine was originally imposed when the voucher is accompanied by a certified copy of the docket entries of the case in the Justice of the Peace Court showing the setting aside of the conviction, together with the certificate of the Chief Justice of the Supreme Court of the State verifying the final disposition of the case and stating that the remittance of the fine or costs to such a person is proper or the certificate of the Deputy Administrator for the Justice of the Peace Courts acting as agent for the Chief Justice of the Supreme Court of the State in verifying the final disposition of the case, and stating that the remittance of the fine or costs to such person is proper.
(d) The State Treasurer shall remit the amount of any fine or costs to each person, or the attorney of such person, who has paid a fine upon conviction in the Court of Common Pleas, which conviction was later set aside by the Court of Common Pleas. The State Treasurer shall pay such refund upon proper voucher drawn by such person, or by the attorney of such person, upon whom the fine was originally imposed when the voucher is accompanied by a certified copy of the docket entries of the case in the Court of Common Pleas showing the setting aside of the conviction together with the certificate of the Clerk of the Court of Common Pleas verifying the final disposition of the case and stating that the remittance of the fine or costs to such person is proper.
48 Del. Laws, c. 278, §§ 1, 2; 11 Del. C. 1953, § 4104; 56 Del. Laws, c. 394; 58 Del. Laws, c. 210; 63 Del. Laws, c. 140, § 1.;
§ 4104. Fines, costs or restitution; how collected; holding operator's license as security for payment.
(a) When a court imposes a fine, costs or restitution upon a defendant, the court or justice of the peace may direct as follows:
(1) That the defendant pay the entire amount at the time sentence is imposed;
(2) That the defendant pay a specified portion of the fine, costs or restitution at designated periodic intervals, and in such case may direct that the fine, costs or restitution be remitted to a probation officer who shall report to the court, at such periods as the court may direct, any failure to comply with the orders; or
(3) Where the defendant is sentenced to a period of probation as well as fine, costs or restitution that payment of the fines, costs or restitution shall be a condition of the probation.
(b) Any court, including a justice of the peace, may, in its discretion, permit any person sentenced to pay a fine upon conviction of crime, in lieu of the payment of the fine ordered, to execute a bond acknowledging the amount of the fine imposed upon the person as a debt due and owing to this State and binding the person unto this State in an amount equal to 10 times the fine imposed. The bond shall be so conditioned that, should the amount of the fine imposed be paid to this State on or before the tenth day next following the day on which the fine is imposed, then in that event the bond shall be null and void. The bond shall contain a warrant of attorney authorizing the Prothonotary or any attorney of record in this State or elsewhere to appear in any court, including a justice of the peace, and confess judgment against the person so bound. Upon execution of the bond the convicted person shall be required to list on the reverse thereof all motor vehicles and real property owned by the person or in which the person has any title or interest with a description and the location thereof.
(c) Any court may, in its discretion, direct any person sentenced to pay a fine or restitution upon conviction of a crime, who is employed within this State or by a Delaware resident or employer, to execute an assignment of a specified periodic sum not to exceed 1/3 of the person's total earnings, which assignment shall direct the person's employer to withhold and remit that amount to this State up to the total of the fine, costs and restitution imposed.
An assignment of earnings executed in accordance with this subsection shall be binding upon an employer in the same manner as an attachment of wages pursuant to Title 10, except that an assignment need be filed only once with the employer who shall make the withholding and remittances until the full amount is paid. An amount of total earnings consistent with federal law may be assigned. An employer shall take no action against an employee who has executed an assignment, and the penalty imposed upon an employee solely because of an assignment under this subsection shall be in accordance with the manner set forth for attachments.
(d) For purposes of ensuring the payment of fines, restitution and the enforcement of any orders imposed under this section, the court shall retain jurisdiction over the convicted person until any fine or restitution imposed shall have been paid in full. The court may write off the fines, costs and restitution of any convicted person when the court receives evidence that such person is deceased.
(e) Whenever any person lawfully possessed of an operator's license theretofore issued to the person by the Division of Motor Vehicles of the Department of Transportation of the State, or under the laws of any other state or territory, or of the District of Columbia, shall be arrested and charged with any violation of the traffic or criminal laws of this State, or of any political subdivision thereof, a court, as a condition of sentencing, may take and hold, as security for the payment of any fine, costs, restitution or Victims Compensation Fund assessment, the operator's license so issued to the defendant.
(f) Any person whose operator's license has been deposited with a court,
pursuant to subsection (e) of this section above, shall be issued a receipt by
the court taking said license upon a form substantially as set forth in this
subsection, and thereafter said person shall be permitted to operate a motor
vehicle upon the highways of the State during the pendency of the case in
which the license was taken, unless the person's license or privilege to
operate a motor vehicle is otherwise revoked, suspended or cancelled.
FORM OF RECEIPT
The operator's license of ………....., license number .............. is held by the .............. Court,
State of Delaware, as security for the payment of a fine, costs, restitution
or Victims Compensation Fund assessment in Case No........... . Please accept this
receipt as a substitute for that license as provided by Title 11, § 4104(e),
Delaware Code, as amended. Payment is due by ……….... . This receipt is not valid
after said date. Failure to appear will result in license suspension. An
attempt to secure, or the securing of, a duplicate operator's license during
the period in which this court holds an operator's license shall be considered
as a contempt of court under 11 Del. C., § 1271(3).
……………..............
Judge
(g) The clerk of the court in which the sentence was imposed and for which a person's license was taken as security, pursuant to subsection (e) of this section, shall immediately forward to the Division of Motor Vehicles of the State the license if the person fails to pay by the date indicated in the receipt as prescribed by subsection (f) of this section above. The Director of the Division of Motor Vehicles shall, upon receipt of a license so forwarded by the clerk, suspend the operator's license and driving privileges of the defaulting driver until notified by the court that payment of the fine, costs, restitution or Victims Compensation Fund assessment has been made. If the person be from another state or territory or the District of Columbia of the United States, the Director of the Division of Motor Vehicles shall further advise the motor vehicle administrator of the state, territory or the District of Columbia of this State's suspension and request that said person's license to drive be suspended until the fine, costs, restitution or Victims Compensation Fund assessment have been paid.
(h) The clerk of the court in which the sentence was imposed and for which a person's operator's license was taken as security, pursuant to subsection (e) of this section, shall immediately return the person's operator's license upon payment of the fine, costs, restitution or Victims Compensation Fund assessment within the period as prescribed by the sentencing judge and as reflected in the form set forth in subsection (f) of this section.
11 Del. C. 1953 § 4105; 57 Del. Laws, c. 198, § 2; 57 Del. Laws, c. 513, §§ 2, 3; 59 Del. Laws, c. 194, § 1; 59 Del. Laws, c. 269, § 1; 63 Del. Laws, c. 140, § 1; 63 Del. Laws, c. 141, §§ 7, 8; 63 Del. Laws, c. 223, §§ 1-4; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 5.;
§ 4105. Default in payment of fine; inability to pay.
(a) No person sentenced to pay a fine, costs or restitution upon conviction of a crime shall be ordered to be imprisoned in default of the payment of such fine, costs or restitution.
(b) Where a person sentenced to pay a fine, costs, restitution or all 3, on conviction of a crime is unable or fails to pay such fine, costs, restitution or all 3, at the time of imposition of sentence or in accordance with the terms of payment set by the court, the court may order the person to report at any time to the Commissioner of the Department of Correction, or a person designated by the Commissioner, for work for a number and schedule of hours necessary to discharge the fine, costs or restitution imposed. For purposes of this section, the hourly rate shall be established in accordance with the then prevailing federal minimum wage, and shall be used in computing the amount credited to any person discharging fines, costs and restitution. In cases involving Justices of the Peace Courts, the Chief Magistrate thereof shall establish guidelines for the number of hours of work which may be assigned and the Courts shall adhere to said guidelines. The Department may approve public work assignments for convicted persons in accordance with subsection (c) of this section, whereupon the Commissioner, or a person designated by the Commissioner, may assign the convicted person to work under the supervision of any state, county or municipal agency on any project or assignment specifically certified for that purpose. The Department of Correction shall not compensate any convicted person assigned to work under the supervision of any state, county or municipal agency but shall credit such person with the number of hours of satisfactory service. When the number of such hours equals the number of hours imposed by the court, the Department shall certify this fact to the appropriate court, and the court shall proceed as if the fines, costs and restitution had been paid in cash. Fines, costs and restitution successfully worked off in the above manner shall not be considered as receivables of the court, but the records shall show the hours worked. Failure to comply with an order of the court made pursuant to this section shall be punishable as civil contempt and all courts shall have the power to punish as a civil contempt any convicted person who fails to comply with such an order. In the event a person serves all or part of a sentence of incarceration for contempt of court in accordance with this subsection, the length of the sentence being in the court's discretion and based upon the amount of the outstanding fines and costs, the court shall cancel all or part of the fines and costs. The amount of fines and costs cancelled shall be commensurate with the amount of the time served.
(c) Any agency of the State, county or any municipality or any nonprofit organization approved by the court may submit public work projects or proposed assignments to the Department of Correction for certification as approved public work projects under this section. Upon certification the agency will be notified and the Commissioner of the Department of Correction will be authorized to begin to assign convicted persons to the certified project or assignment.
(d) Notwithstanding subsection (a) of this section, where a defendant sentenced to be imprisoned is ordered to pay a fine, costs, restitution or all 3, the court may order an additional sentence of imprisonment in lieu of requiring the payment of the fine, costs, restitution or all 3; provided, however, that this additional sentence of imprisonment may not exceed 30 days, to be served concurrently or consecutively with the sentence originally imposed, as the court may order.
(e) A court having probationary powers may, in its discretion, treat any failure to comply with a court order in respect to fines, costs, restitution or all 3 either as a civil contempt or as if the defendant had been placed on probation and the probation violated; provided, however, that any sentence for violation of probation may not exceed 30 days.
11 Del. C. 1953, § 4106; 57 Del. Laws, c. 198, § 3; 57 Del. Laws, c. 509; 57 Del. Laws, c. 513, § 4; 59 Del. Laws, c. 145, § 1; 59 Del. Laws, c. 270, § 1; 60 Del. Laws, c. 465, § 1; 62 Del. Laws, c. 220, § 1; 63 Del. Laws, c. 140, § 1; 63 Del. Laws, c. 141, § 9; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 19, § 1.;
§ 4106. Restitution for property damage or loss.
(a) Any person convicted of stealing, taking, receiving, converting, defacing or destroying property, shall be liable to each victim of the offense for the value of the property or property rights lost to the victim and for the value of any property which has diminished in worth as a result of the actions of such convicted offender and shall be ordered by the court to make restitution. If the court does not require that restitution be paid to a victim, the court shall state its reason on the record. The convicted offender shall also be liable for direct out-of-pocket losses, loss of earnings and other expenses and inconveniences incurred by victim as a direct result of the crime. For each criminal offense resulting in arrest in which property is alleged to have been unlawfully taken, damaged or otherwise diminished in value, a loss statement shall be prepared, by the police or by the victim when there is no police involvement, documenting for the court the value of the property lost or diminished as a direct result of the crime.
(b) In accordance with the evidence presented to the court, the court shall determine the nature and amount of restitution, if any, to be made to each victim of the crime of each convicted offender. The offender shall be ordered to pay a fixed sum of restitution or shall be ordered to work a fixed number of hours under the work referral program administered by the Department of Correction, or both.
(c) In the event a convicted offender is ordered by the court to pay fines, costs or other financial obligations along with restitution, payments shall first be applied to Victim Compensation Fund, next to pay restitution and then to the other payments ordered to be made.
(d) Each court shall establish procedures for the collection and disbursement of funds ordered under this section, including notification of the victim that restitution has been ordered. Such procedures shall at minimum include the following:
(1) All restitution payments shall be disbursed to victims within 90 days of receipt or whenever the accumulated amount of the restitution payments received is $50 or more, whichever event first occurs.
(2) Where there are multiple victims, disbursements shall be in proportion to the amounts owed to each victim, with individuals to receive disbursements in full before insurance companies receive any disbursements.
(3) Any and all interest earned on deposited restitution payments shall be set aside and deposited on at least a quarterly basis to the Victim Compensation Fund.
Any and all principal amounts received as restitution payments which are unclaimed after 5 years from date of receipt shall be deposited in the Victim Compensation Fund.
If, at any time in the future, the victim owed restitution requests the transferred funds, and makes application to the Victim Compensation Fund Board, said moneys will be refunded, following verification by the transferring Court.
(e) An order of restitution may not preclude the victim from proceeding in a civil action to recover damages from the offender. A civil verdict shall be reduced by the amount of restitution paid under the criminal restitution order.
63 Del. Laws, c. 141, § 1; 66 Del. Laws, c. 174, § 1; 67 Del. Laws, c. 260, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 220, § 1.;