Like other states, Delaware distinguishes misdemeanors from felonies by the possible punishment that can be imposed. A misdemeanor is any crime that can be punished by incarceration of up to one year, whereas felonies are punishable by more than one year and up to life in prison.
This article discusses how misdemeanor sentencing works in Delaware.
Delaware divides misdemeanor crimes into two primary categories: Class A and B misdemeanors. Any crime that doesn't specify an offense level is considered an unclassified misdemeanor. Each misdemeanor class has a maximum sentence of incarceration and fine, described below.
Class A misdemeanors are the most serious misdemeanors in Delaware, punishable by up to one year in jail and a $2,300 fine. Examples include third-degree assault, violation of domestic violence protective order, unauthorized use of a vehicle (joyriding), criminal trespass of a dwelling, theft under $1,500, and offensive touching.
An unclassified misdemeanor may be punished by up to 30 days' jail time and a $575 fine or by the penalty specified in law. Examples include disorderly conduct, public intoxication, possession of marijuana (quantity other than personal use), and sexual harassment.
Delaware uses a system of sentencing guidelines for misdemeanors. Sentencing guidelines rely on several factors to determine a presumptive (standard) sentence, which provides both a recommended sentence length (up to the maximum listed above) and a supervision level between 1 and 5. Level 5 supervision means jail time. Levels 1 to 4 involve increasing levels of community supervision (probation).
Delaware judges will look at the following factors when deciding on a sentence:
Class A misdemeanor sentences carry a range of penalties depending on the seriousness of the offense. Violent class A misdemeanors, for example, start with a level 2 supervision. Property and order-and-decency offenses, on the other hand, start with level 1 supervision. Generally speaking, the standard sentence for all class A misdemeanors increases in length and supervision level for repeat offenders.
Class B and unclassified misdemeanors recommended fine-only penalties for first and second offenses and probation sentences for third offenses.
To find presumptive sentences for other misdemeanor classes, check out the most recent benchbook on the Delaware Sentencing Accountability Commission's website.
For most first and second misdemeanor convictions, a defendant will serve all or part of the time on probation. Probation suspends the incarceration portion of the sentence and allows the defendant to serve that time in the community under varying levels of supervision.
Depending on the supervision level, the judge may impose certain conditions of probation, such as remaining law-abiding, completing community service, paying victim restitution, attending substance abuse treatment, or being under house arrest. The defendant must abide by these terms to successfully complete the sentence. A violation of any of these conditions can result in the judge revoking the suspended sentence and sending the defendant to jail.
Defendants convicted of a third or subsequent class A misdemeanor will likely see some jail time, especially for a violent offense like assault or making threats. As described below, some misdemeanors result in jail time due to exceptional circumstances.
In certain cases, the law authorizes the imposition of an "exceptional sentence" that departs up or down from the recommended length or imposes a different disposition (such as incarceration rather than probation). When imposing an exceptional sentence, the judge must provide the rationale for doing so, such as any of the factors listed below.
Aggravating or mitigating factors. Aggravating factors, such as a crime involving a vulnerable victim or lack of remorse, may justify imposing a harsher sentence. On the flip side, a judge might impose a less harsh sentence if mitigating factors were involved, such as the defendant was induced by others to commit the crime.
Domestic violence involved. A judge can also impose a harsher sentence in domestic violence offenses where, for example, a child witnessed the violence or repeated incidences were involved before charges were filed. In such cases, the guidelines provide an aggravated presumptive sentence that includes incarceration (rather than probation). As an example, third-degree domestic assault carries a presumptive sentence of incarceration for a month for a first offense, two months for a second offense in two years, and three months for a third offense in five years.
Statutory minimum sentence. When the law fixes a minimum sentence for the offense, judges must impose that mandatory minimum. For instance, a third or subsequent violation of a domestic violence protective order carries a 15-day minimum jail sentence.
The law allows prosecutors to charge certain misdemeanor violations as felonies. Enhanced felony charges are authorized for several misdemeanor offenses involving a repeat offender, injuries, a weapon, or a vulnerable victim. Some examples include:
Like most states, Delaware sets time limits for prosecutors to file charges in a criminal case. If a prosecutor charges a case after the time limit has run, a defendant can ask the judge to dismiss the case. The time limit for misdemeanors is generally two or three years after the offense was committed.
Any criminal conviction can have serious and lasting results that can make life unpleasant for years to come. If you are charged with any crime, even a seemingly trivial misdemeanor, consult a local criminal defense attorney. An experienced Delaware attorney can tell you how your case is likely to fare in court and how to best protect your rights. You may want to ask if and how you can get a conviction expunged.
(Del. Code tit. 11, §§ 205, 611, 612, 1245, 1271A, 1445, 4202, 4204, 4206, 4332, 4333, 4334 (2023).)