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State v. Owens

Superior Court of Delaware, New Castle County

December 1, 1953

STATE
v.
OWENS (two cases).

Motion for sentencing under Habitual Criminal Act. The Superior Court, New Castle County, Layton, J., held that Habitual Criminal Act was inapplicable in view of fact that fourth felony involved had been committed prior to effective date of act.

Motion dismissed.

Motion for sentencing under Habitual Criminal Act. Denied.

On October 8, 1953, defendant pled guilty to two felonies: larceny of an automobile on June 17, 1953, No. 22, September Term, 1953, and larceny of a motor vehicle on February 10, 1953, No. 97, May Term, 1953. When I referred these matters for presentence investigation, the State indicated that this was a case to which the new Habitual Criminal Act was applicable. Thereupon, I directed the State to file a written motion to bring on the defendant for sentencing under the Act. Court-appointed counsel for defendant asked and was granted permission to file a brief in opposition thereto.

Title 11, § 109, Delaware Code of 1953, approved July 15, 1953, is here set forth:

[48 Del. 231] ‘ Any person who has been three times convicted of a felony under the laws of this State, and/or any other State, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony of this State is hereby declared to be a habitual criminal, and the Court in which such fourth or subsequent conviction is had, in imposing sentence, may, in its discretion, impose a life sentence upon the person so convicted.’

Defendant's counsel points out in her very able brief that the crimes now before

Page 320

the Court for sentencing were committed prior to the effective date of the Act just quoted and, consequently, insofar at least, as concerns this defendant, the Act in question is ex post facto.

Edmund N. Carpenter, II, Dep. Atty. Gen., for the State.

Brereton Sturtevant, Wilmington, for defendant.

LAYTON, Judge.

A statute of this nature is valid provided only that it is made applicable to a fourth offense committed subsequent to its passage. Gryger v. Burke, Warden, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; Wilson v. U.S., 9 Cir., 205 F.2d 567; Cases v. U.S., 1 Cir., 131 F.2d 916.

But the application of a statute increasing the punishment for a crime, after the commission of that crime, is ex post facto and, thus, unconstitutional by virtue of Article I, Section 10 of the Federal Constitution.[1]Lindsey v. State of Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182; U. S. v. Platt, D.C.Tex., 31 F.Supp. 788, 792; People v. D' A Philippo, 220 Cal. 620, 32 P.2d 962; State v. Dreaux, 205 La. 387, 17 So.2d 559.

While it necessarily follows that the State's motion must be dismissed, I think it appropriate to comment very briefly upon the proper procedure for bringing on these matters hereafter for sentence under the Act in question. As I read the Act, it is the State's duty to bring on for sentence as an habitual criminal every defendant found guilty of the commission of a fourth [48 Del. 232] felony. It has been suggested that the proper procedure should be by way of indictment-that is to say, an indictment for such felony which would contain sufficient additional allegations (including defendant's conviction of three former felonies) to charge him as an habitual criminal. Concededly, this practice is pursued in some states but an examination of a number of their statutes reveals that this procedure is required by the very terms of the Statute. Moreover, such a practice would always be the subject of criticism from both the defendant and the prosecution, the former complaining that it is prejudicial to his case for the jury to have before it the record of his ...


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