Opinion
ID No. 9902016536.
Submitted: February 28, 2000
Decided: March 1, 2000
State's Motion to Declare an Habitual Offender — Granted.
Stephen R. Welch, Jr., Esquire; Department of Justice, 45 The Green Dover, Delaware 19901.
Sandra W. Dean, Esquire; Office of the Public Defender, 530 South State Street Dover, Delaware 19901.
Dear Counsel:
At sentencing on February 18, 2000, the Court considered the State's motion to declare the defendant an habitual offender. An issue arose as to whether the Court has any discretion in this regard or whether it is mandatory that the Court sentence Mr. Draper as an habitual offender pursuant to the statute. I have before me counsel' s memoranda advising the Court on whether it has any discretion to determine whether Robert Draper can be sentenced as an habitual offender pursuant to 11 Del. C. § 4214(a).
Delaware's habitual offender statute 11 Del. C. § 4214(a) provides in pertinent part:
"Any person who has been three times convicted of a felony, other than those which are specifically mentioned in subsection (b) of this section, under the laws of this State and/or any other state, United States or territory of the United States, and who shall thereafter be convicted of a subsequent felony of this State is declared to an habitual criminal, and the court in which such fourth or subsequent conviction is had, in imposing sentence, may in its discretion impose a sentence up to life imprisonment upon the person so convicted . . ."
There is no issue that Mr. Draper is subject to the habitual offender statute.Our Legislature, when it passed the amendment to the statute on July 10, 1996, made it clear that the discretion of the sentencing court was restricted with regard to a declared habitual offender who was being sentenced for certain named violent felonies whereupon the court must impose a sentence at Level V which is at least equal to the statutory maximum penalty for the offense.
Having reviewed current case law as well as reviewing the cases submitted by the parties, the Court finds that the language of the statute is clear and so is the intent of the Legislature. Therefore, the Court concludes that there is no discretion to alter the clear intent imposed upon the Court pursuant to 11 Del. C. § 4214(a).
This Court must sentence Mr. Draper for the Burglary II count pursuant to 11 Del. C. § 4214(a). IT IS SO ORDERED.
dmh oc: Prothonotary xc: Order Distribution