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Delaware

State Resource Guide

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The Post-Conviction Process

Click on the underlined links to view more information. 

To help you better use this state-by-state resource, here is a glossary of terms used throughout this site.

Post-Sentencing Review

Direct Appeal

State Post-Conviction Motions

Federal Habeas Corpus

Early Release Programs

Prosecutorial Review

Clemency

Victims have rights throughout this whole process. Click here to learn more.

A criminal case may not go through each stage included in this visual representation, or these stages may occur in a different order than they appear in this graphic. Additionally, some cases may go through these stages several times. Each case is unique, and this chart is intended only as a visual aid to help victims and survivors understand the post-sentencing process.

Post-Sentencing Review

After an individual accused of a crime has been convicted and sentenced, they may file motions in the trial court to challenge their conviction or sentence.
  •  These can include motions for an acquittal, to arrest the judgment, to be resentenced, or for a new trial based on new evidence or problems with how the case has been handled. In certain situations, the prosecution may also file a motion to modify the person’s sentence.
  • Victims can receive information about post-trial motions from the district attorney’s office in the county where the crime was prosecuted. 

Direct Appeal

After any post-sentencing motions are decided by the court (or if no post-trial motions are filed), an individual convicted of a crime may ask a higher court to review the trial court’s and jury’s decisions. This is called a “direct appeal.”
  • On appeal, the court does not admit new evidence or call witnesses but instead reviews what happened in the trial court. If the convicted person pursues an appeal, they may ask to be released while it is pending.
  • The Appeals Unit of the Criminal Division of the Delaware Attorney General represents the State in direct appeal. Victims can receive information about direct appeals by contacting the Attorney General’s Victim/Witness Program & Case Notification line at 800-870-1790. Additional contact information is available on the Attorney General’s website.

State Post-Conviction Motions

Post-conviction motions are requests to have the conviction or sentence reviewed that are filed after the direct appeal process has ended.
  • These motions can seek many outcomes, including invalidation of the conviction, shortening the amount of time the convicted person must spend in prison, or permission from the court for that individual to view or find additional information relevant to the case – such as new DNA testing.
  • The Appeals Unit of the Criminal Division of the Delaware Attorney General represents the State in state post-conviction proceedings. Victims can receive information about direct appeals by contacting the Attorney General’s Victim/Witness Program & Case Notification line at 800-870-1790. Additional contact information is available on the Attorney General’s website.

Federal Habeas Corpus

After seeking post-conviction relief in state court, a person convicted under Delaware law may go to federal court in a process called “habeas corpus.”
  • Relief in federal habeas corpus is available only in specific and rare circumstances. Issues often raised in federal habeas cases include claims that the convicted person had an inept attorney, claims that police or prosecutors violated their rights, hid evidence, or committed other misconduct.
  • The Appeals Unit of the Criminal Division of the Delaware Attorney General represents the State in federal habeas corpus proceedings. Victims can receive information about direct appeals by contacting the Attorney General’s Victim/Witness Program & Case Notification line at 800-870-1790. Additional contact information is available on the Attorney General’s website.

Early Release Programs

These programs can include parole, medical parole, or earning “credits” in prison.
  • If someone is sentenced to a term of imprisonment, they may be released from prison earlier than expected through several programs available in Delaware, including parole, medical parole, or earning reductions in their sentences (usually called “good-time credits”) for good behavior or completing certain educational, vocational or rehabilitative programs in prison.
  • Victims can track the status of an incarcerated person via the Victim Information and Notification Everyday (VINE) website at www.vinelink.com. To receive notification about an incarcerated individual’s release and movement, victims should also contact the Victim Services Unit of the Delaware Department of Correction via phone at 302-857-5440 or via email at DOC_VictimServices@delaware.gov.  Victims can also update their contact information through the Attorney General’s Victim/Witness Program & Case Notification line at 800-870-1790.

Prosecutorial Review

Prosecutors can reconsider the conviction to be sure it is just.
  • Delaware’s Actual Innocence Program within the state’s Department of Justice is designed to ensure that the Department is aware of and takes corrective action regarding people who are incarcerated despite empirical evidence establishing their innocence. People seeking review must apply to the Program. Review is discretionary, and a denial of review may not be challenged in court.

Clemency

In rare cases, the governor may grant the convicted person relief from their sentence or conviction.
  • The governor can grant clemency to people convicted of felonies under Delaware law. The Board of Pardons helps the governor in this process. Clemency typically takes one of three forms: a pardon (which forgives a conviction), a commutation (which shortens a person’s sentence), or a reprieve (which provides temporary relief from a person’s sentence).
  • The Delaware Attorney General is required to notify victims about the date, place, and time of clemency proceedings and notify victims of their right to attend or make a statement to the Board of Pardons. Victims can contact the Attorney General’s Victim/Witness Program & Case Notification line at 800-870-1790 for additional information. More contact information is available on the Attorney General’s website.

Victims Rights
Post-Conviction

In Delaware, victims have the right to:
  • Be safe
  • Notification of and presence at post-trial proceedings and post-conviction or appellate proceedings*
  • Notification of significant developments and decisions in post-trial proceedings and post-conviction or appellate proceedings*
  • Have a voice in the post-sentencing process 
  • File a complaint for law-enforcement’s failure to honor their rights
  • Confidentiality of residence, telephone number, school or place of employment 
  • Notification of the convicted person’s projected release date and actual release date
  • Notification of parole and clemency hearings and decisions*
  • Be present and heard in parole and clemency hearings
  • Have a victim advocate present at court appearances, and parole and pardon hearings
  • Certain employment protections to attend proceedings
  • Notification of escape and recapture, transfer, release, and changes in the sentence of the convicted individual*
  • Request restitution and apply for victims’ compensation
  • Prompt return of property when it is no longer needed as evidence

 

* All rights to notification require the victim to provide and update their information with the District Attorney, Attorney General, Department of Corrections, and/or the Board of Paroles and Pardons.

Compensation

  • Restitution is a court-ordered payment from the defendant to the victim to account for the victim’s economic loss. Apart from court-ordered restitution, the Delaware Victims’ Compensation Assistance Program (VCAP) reimburses victims for expenses related to the crime, such as healthcare, lost wages, and funeral expenses.
  • After conviction, the Delaware Department of Justice sends victims questionnaires regarding restitution. Additionally, victims can contact the Delaware Victims’ Compensation Assistance Program via phone at 302-255-1770 or file a claim using this form. Applications must be filed within 1 year of the crime, with limited exceptions.
Click here to learn more about the post-conviction process and victims’ rights in Delaware

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