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Rule 5.3 – Modification of conditions of release

May 15, 2021 | Criminal Procedure, Delaware, Superior Court

(a)Definitions.

All terms shall have the meanings given them in Rule 5.2(a).

(b)Obligation to review conditions of release iftlte defendant is detained for inability to meet required conditions of release,

Unless reviewed earlier, if the defendant remains detained for more than 72 hours from the defendant’s initial presentment as a result of the inability to meet the required conditions of release, the court with jurisdiction over the defendant shall, on its own initiative, review de novo the defendant’s conditions of release to determine whether to modify those conditions. This review shall occur within 10 days from the date of detention,

(c)Motions by parties for review of conditions,

(1)In general. A defendant, regardless of custody status, or the Attorney General, the Attorney General’s designee, a third party private or commercial surety, the Department of Correction, or any person or nongovemmentai organization to whom a defendant has been released for supervision may file a motion in the court with jurisdiction over the defendant to modify the defendant’s conditions of release or make an oral application at any proceeding at which the parties are both present.
(2) Hearing on motion.

(A)Expedited hearing required. Upon a request for modification of conditions under this subsection, the court shall hold a hearing in an expedited manner, but in no event later than 10 days after the filing of the motion or oral application.
(B)Defendant’s right to counsel. The defendant shall have the right to assistance of retained or appointed counsel at any hearing under this subsection. Nothing in this subparagraph shall be construed to create or expand any substantive right to appointed counsel.
(d)Same standards apply to requests for modification of conditions,

In determining whether to modify the defendant’s conditions of release under this rule, the court shall continue to adhere to Rule 5, 2 in all respects.

(e)Court must state reasons for decision and issue implementing order,

Upon the disposition of any request to modify the defendant’s conditions of release under subsection (c), the court shall set forth on the record the reasons for amendment or continuation of the conditions required and issue an implementing written order.

(f)Later motion for review; later review limited,

After an initial request for modification of the defendant’s conditions of release under subsection (c), later motions for review of the order setting conditions of release may be filed only upon a material change in circumstance. The court may rule on later motions with or without a hearing.

Del. R. Crim. P. Super Ct. 5.3

Adopted December 13, 2018, effective January 1, 2019.

Commentary to Interim Rule 5.3.

Rule 5.3 provides for two different mechanisms for judicial review of the defendant’s conditions of release after the court’s initial determination. First, the court with jurisdiction over the defendant shall review the defendant’s conditions of release on its ovm initiative within 72 hours if the defendant remains detained because she cannot meet the conditions of release. Second, the rule provides the State, the defendant, and certain other interested parties with the opportunity to move for modification of the conditions of release. Upon a request for modification, the court shall hold a hearing and state its reasons on the record, and in making a determination under either mechanism, the court shall follow the same considerations as it would under Rule 5.2 in making an initial determination. After the first request for modification, however, the court need not hold a hearing.