Appeal from a judgment of conviction by the Superior Court of Kent County and the imposition of a sentence of life imprisonment thereupon. Reversed.
John B. Maybee, Deputy Atty. Gen., Dover, for State of Delaware.
Henry J. Ridgely, Dover, for defendant.
WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.
This appeal involves the construction of 11 Del.C. §§ 3911 and 3912,  sometimes known as the Habitual Criminal Act.
The question presented for decision is whether an information filed under § 3912(b) charges a separate offense upon which there may be a separate conviction and a separate sentence.
The facts are these:
On May 6, 1960, two informations were filed by the Attorney General bringing two charges of breaking and entering against the defendant. On the same day, an information was filed by the Attorney General charging that the defendant 'having been convicted of four felonies under the laws of this State subsequent to July 15, 1953, has become an habitual criminal' in violation of 11 Del.C. § 3911. The defendant was arraigned on each of the three informations and entered a separate plea of guilty to each. On July 19, 1960, after presentence investigation, the defendant was sentenced to a concurrent term of five years imprisonment on each of the breaking and entering charges. Simultaneously, he was sentenced on the information charging violation [58 Del. 258] of § 3911 to 'be imprisoned for life. The imprisonment is suspended, pending good conduct and having no more added to criminal record, following present imprisonment.'
On March 2, 1964, the defendant was indicted by the Grand Jury of Kent County on nine charges of burglary in the fourth degree. The defendant entered a plea of guilty to five of the charges. On March 6, 1964, the defendant having been brought before the court, the suspension of the life sentence was ordered revoked and the defendant was ordered 'imprisoned for the remainder of his life.' The defendant was then sentenced to a consecutive term of five years on each of the five burglary charges 'to be concurrent with the one for life imprisonment.'
The defendant contends on this appeal that the judgment of conviction for the alleged crime of being an habitual criminal, and the sentence based on such conviction, are invalid because 11 Del.C. § 3911 does not provide for a separate charge, a separate conviction and a separate sentence for any such offense. We agree.
Habitual criminality is a status and not a criminal offense under our law. The Delaware Habitual Criminal Act does not create or define a new or different crime; rather, it describes the circumstances and the procedures under which this most severe penalty may be imposed for repeated felony convictions. The language of § 3911 is clear. It provides that in imposing a sentence on a fourth or subsequent felony conviction, the court may, in its discretion, impose a life sentence. The Statute clearly contemplates the imposition of a term of life imprisonment as the greater penalty for the fourth or subsequent conviction and not as a penalty for any separate offense.
It was error, therefore, to treat the information filed under the Habitual Criminal Act, in the ordinary way as a charge of a separate offense carrying with it a separate conviction and a separate sentence. If the court below, in its discretion, wished to impose a life sentence upon [58 Del. 259] the defendant under § 3911, it could have done so properly by imposing that sentence upon any of the felony convictions after the third. There is no room for deviation in the statutory proceedings such as appears here.
The origination and evolution of the procedure, used to implement our Habitual Criminal Act, appear in State v. Owens, 9 Terry 230,101 A.2d 319 (1953) and in 11 Del.C. § 3912. It appears that § 3912 was enacted as the result of the Owens case in which the court noted the lack of a procedure for implementing the Act. The court there prescribed the proceeding by information as a means of utilizing the Act with due regard ...