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State v. Krimm

Superior Court of Delaware

May 21, 2018

STATE OF DELAWARE
v.
MATTHEW A. KRIMM, Defendant.

          Robert H. Robinson, Esq.

          William E. Green, Esq.

          ORDER

          Richard F. Stokes, Judge

         AND NOW, TO WIT, this 21st day of May, 2018, it is the finding of the Court that:

         On March 21, 2018, Defendant, Matthew A. Krimm ("Defendant"), filed this Motion to Dismiss Counts 8 through 10 of the Indictment in this case. On April 12, 2018, the Court denied the Motion as to Counts 9 and 10, but requested supplemental argument as to Count 8. The Court specifically asked the parties to address the applicability of Holland v. State.[1] Defendant submitted his Supplement to the Motion to Dismiss on April 25, 2018. The State answered on May 9, 2018.

         Count 8 of the Indictment charges Defendant with Theft of $100, 000 or more. The alleged victim is Michael McCarthy. In 2014, Defendant pled guilty to and was sentenced for a series of offenses, including Issuing a Bad Check to Michael McCarthy. Defendant now argues that his constitutional protection against double jeopardy will be violated if he is prosecuted for both Theft and Issuing a Bad Check. 11 Del. C. § 208 sets forth the circumstances when a prosecution is barred by a former prosecution for a different offense. The statute reads in pertinent part:

Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution in a court having jurisdiction over the subject matter of the second prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in §207 of this title and the subsequent prosecution is for:
a. Any offense of which the defendant could have been convicted on the first prosecution; or
b. The same conduct, unless:
i. The offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil.[2]

         Defendant acknowledges that both crimes have different code sections, but claims that the charges are essentially the same and concern the same conduct. In short, the Code seeks to prevent the same "evil or harm" by punishing these crimes. Importantly, Defendant asserts that the State has not shown a single fact that would have prohibited it from charging him with Theft at the time of the 2014 case. Therefore, according to Defendant, this charge should have been brought as part of the 2014 case and the State is prohibited from charging him for this conduct now.

         Defendant argues that Holland v. State is not on point. In Holland, the defendant was convicted of Assault and later charged with Robbery. Assault and Robbery are classified in different categories within the Code, whereas Theft and Issuing a Bad Check are both classified as crimes against property. This shows that the "harms or evils" that the Code seeks to prevent are similar, making it so the charges are too closely related to be brought against the same conduct. Thus, Defendant states that Count 8 should be dismissed.

         On the other hand, the State argues that Count 8 should not be dismissed. The State claims that the prosecution should move forward for four reasons: (1) Defendant could not have been convicted of Theft on the 2014 Information, (2) the Theft charge and Issuing a Bad Check charge allege different conduct, (3) the Theft charges requires proof of a fact not required by the Issuing a Bad Check conviction, and (4) the laws defining Theft and Issuing a Bad Check seek to prevent substantially different harms. Also, the State argues that the circumstances do not create a presumption of vindictive prosecution. Finally, ...


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