Wilfred J. Smith, Jr., Deputy Atty. Gen., for the State.
[50 Del. 355] Norman N. Aerenson, Wilmington, for defendant.
On August 16, 1955, defendant pleaded guilty to a charge of being concerned in interest in lottery policy writing and was sentenced to pay a fine of $500 or, in default thereof, to serve three months in jail. Thereafter, defendant appealed to the Superior Court, and the State, in turn, has moved that the appeal be regarded as an appeal of the sentence only, that a presentence investigation be made and defendant placed upon the sentence list.
Defendant takes the position that by virtue of Article 4, Sec. 28 of the State Constitution, Del.C.Ann.,  he is entitled as of right to an appeal in the form of a trial de novo.
In State v. Waters, Del.Super.128 A.2d 556, January 7, 1957, I denied the State's motion to dismiss defendant's appeal in a similar case upon the authority of State v. Stevens, 3 W.W.Harr. 479,139 A. 78, adding by way of a footnote, 'If there is merit in the Attorney General's argument that the right of appeal in this instance should be limited to a review of the sentence above and not amount to a trial de novo, such contention is not properly before me at this stage of the proceeding.' However, the question is now squarely raised.
Prior to an examination of the language of the Constitution itself, it is appropriate to notice two things, first, the undesirability from a practical point of view  of permitting appeals [50 Del. 356] by way of a trial do novo from judgments rendered upon pleas of guilty and, secondly, the fact that, in the absence of a special statute or Constitutional provision, the better reasoned authorities deny the right of a person who pled guilty below to an outright appeal. Compare Commonwealth v. Marino,254 Mass. 533, 150 N.E. 841, where the appeal was limited to a review of the sentence below alone.
While the question was not squarely before him, Judge Rodney took occasion to comment on this very situation in State v. Stevens, supra. After examining the debates of the Constitutional Convention of 1897, Judge Rodney concluded that the true purpose and meaning of the language above quoted from Article 4, Sec. 28, was that the right of appeal therein provided for was limited to a review of the sentence:
'An inspection of the debates in Volume, 7, pp. 4755-5793, is clearly indicative of the fact that the provision allowing an appeal was inserted for the express purpose of allowing a review of the case where any judge or justice had imposed what might be considered as an immoderate sentence or where the offense might not be commensurate with the penalty imposed.