H. Robinson, Esq.
William E. Green, Esq.
Richard F. Stokes, Judge
NOW, TO WIT, this 21st day of May, 2018, it is the
finding of the Court that:
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. Defendant submitted his
Supplement to the Motion to Dismiss on April 25, 2018. The
State answered on May 9, 2018.
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
(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
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
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.
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.
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, ...