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[T] Fisher v. State2/28/2000
owever, in his final contention that the Superior Court erred in imposing a sentence that exceeded the maximum penalty authorized by law. The maximum statutory penalty for a fourth DUI conviction is 5 years imprisonment at Level V. The Superior Court exceeded its authority in sentencing Fisher to a prison term, the Key Program and successive probationary terms that could add up to as much as 6-1/2 years.
(8) Delaware law requires a probationary period of "not less than 6 months to facilitate the transition of the individual back to society" whenever a court "imposes a period of incarceration at Level V custody for 1 or more offenses that totals 1 year or more." This 6-month period may, in the discretion of the court, be in addition to the maximum sentence of imprisonment established by statute. Thus, the maximum permissible sentence was 5 years plus a 6 month transitional period and the final year of probation at Level III must be vacated.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED IN PART and REVERSED IN PART. This matter is hereby REMANDED to the Superior Court for proceedings in accordance with this Order.
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