Del. Fam. Ct. R. Crim. P. 35

As amended through November 14, 2024

Rule 35 - Correction or Reduction of Sentence

(a) Postconviction remedy. Any person who has been sentenced may apply by motion for postconviction relief for any meritorious claim challenging the judgment of conviction including claims:

(i) that the judgment of conviction was obtained or sentenced imposed in violation of the Constitution and laws of this State or the United States;

(ii) that the Court was without jurisdiction to do so; or

(iii) that the sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence or disposition authorized by law.

An application may be filed at any time, provided, however, that postconviction relief shall not be available so long as there is a possibility of taking a timely appeal from the judgment. Unless the motion and the files and records of the case show to the satisfaction of the Court that the applicant is not entitled to relief, the Court shall cause notice thereof to be served on the Attorney General, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the Court finds the applicant is entitled to relief, the Court may set aside the judgment of conviction or sentence, release the applicant from custody, resentence the applicant, grant the applicant a new trial, or otherwise correct the judgment of conviction or sentence as may appear appropriate. The Court need not entertain a second motion or successive motions for similar relief on behalf of the same applicant.

(b) Reduction of sentence. The Court may reduce a sentence within 60 days after imposition, or within 60 days after receipt by the Court of a mandate issued upon affirmance of the judgment or dismissal of an appeal, writ of error or writ of certiorari. Nothing herein contained shall prevent the reduction of a sentence after the expiration of the 60 day period specified above if such reduction is made pursuant to an application made within the specified 60 day period. The Court may modify costs, fine, and conditions of probation at any time.

A motion for reduction of sentence will not be noticed for presentation in open Court but will be filed with the Clerk of the Court who will refer it to the judge or master who imposed the sentence. Such motions will be considered and decided without formal presentation, hearing or argument unless the Court requests a presentation, hearing or argument.

Del. Fam. Ct. R. Crim. P. 35