Summary
distinguishing trial court's invalid order that defendant surrender his license, from court's inherent authority "to proscribe the operation of a motor vehicle . . . as a condition of probation for a length of time not exceeding the period of probation"
Summary of this case from State v. NelsonOpinion
March 10, 1975.
June 24, 1975.
Criminal Law — The Vehicle Code — Operating a vehicle while under the influence of alcohol or drugs — Sentence — Sentence exceeding that authorized in penalty paragraph of statute — Defendant ordered to deliver operator's license to clerk of courts — Vacation of portion of sentence.
1. In this case, the defendant was found guilty of operating a motor vehicle while under the influence of alcohol or drugs. The court below imposed a fine of $250.00 and costs of prosecution. The defendant was also directed to forward his operator's license to the clerk of courts. It was Held that the portion of the sentence directing defendant to forward his operator's license must be vacated.
2. Under the applicable penalty provisions of The Vehicle Code, sentence was limited to a fine and costs of prosecution or imprisonment or both fine and imprisonment.
3. Unless a penalty is specifically provided within the penalty paragraph of the statute in question, the sentencing judge has no power to impose it.
4. It is not within the power of the courts to usurp functions that belong to the legislature.
5. By ordering a defendant to surrender his operator's license to the clerk of courts, a sentencing judge has, in effect, suspended the defendant's operating privileges.
6. Under The Vehicle Code, suspension is a power which originates with the Secretary of Transportation, and the Secretary of Transportation is the only person empowered to suspend operating licenses or operating privileges in the Commonwealth.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 57, March T., 1975, from judgment of sentence of Court of Common Pleas of Dauphin County, No. 378 of 1974, in case of Commonwealth of Pennsylvania v. Irvin Thomas Kline. Judgment of sentence imposing fine of $250.00 and directing the appellant to pay costs of prosecution affirmed. The portion of sentence directing appellant to forward his operator's license to the Clerk of Courts of Dauphin County vacated.
Indictment charging defendant with operating a motor vehicle while under the influence of alcohol or drugs. Before CALDWELL, J.
Plea of guilty entered and judgment of sentence entered thereon. Defendant appealed.
John E. Feather, Jr., with him Feather and Feather, for appellant.
Edwin W. Frese, Jr., Deputy District Attorney, with him Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
VAN der VOORT, J., filed a concurring opinion.
Argued March 10, 1975.
Irvin Thomas Kline, the appellant, was arrested in Derry Township, Dauphin County, by an officer of the Derry Township Police Department on December 29, 1973. He was charged with a violation of § 1037 of The Vehicle Code, operating a motor vehicle while under the influence of alcohol or drugs. On June 6, 1974, appellant entered a plea of "guilty as charged" to an indictment charging him with the cited violation.
Act of April 29, 1959, P.L. 58, § 1037 (75 Pa.C.S.A. § 1037).
Following this guilty plea, Judge William W. CALDWELL of Dauphin County imposed a fine of $250.00 and directed the appellant to pay the costs of prosecution. The court further directed him to forward his operator's license to the Clerk of Courts of Dauphin County within 48 hours.
Act of June 19, 1911, P.L. 1055, § 1, May 7, 1925, P.L. 554, No. 297, § 1 (19 P. S. § 1051).
The sole issue presented here concerns the powers of a sentencing judge in a criminal case where a defendant is to be sentenced on a charge of operating a motor vehicle while under the influence of intoxicating liquor. By ordering the appellant to surrender his operator's license to the Clerk of Courts, the sentencing judge has, in effect, suspended the appellant's operating privileges.
Under the penalty provisions of § 1037 of The Vehicle Code:
"Any person violating the provisions of this section, shall be guilty of a misdemeanor, and shall, upon conviction . . . be sentenced to pay a fine of not less than one hundred dollars ($100.00) and not more than five hundred dollars ($500.00) and costs of prosecution, or undergo imprisonment for not more than three (3) years, or suffer both such fine and imprisonment."
These are the only penalties provided in § 1037, and unless the penalty is specifically provided within the penalty paragraph of the statute in question, the sentencing judge has no power to impose it. This has been the rule in the Commonwealth since Daniels v. Commonwealth, 7 Pa. 371 (1847), where it was ruled that a court should not inflict punishment beyond the express terms of the act. It is not within the power of the courts to usurp functions that belong to the legislature. Krivosh v. City of Sharon, 205 Pa. Super. 498, 211 A.2d 109 (1965).
The Vehicle Code addresses itself to the suspension of licenses or operating privileges. It provides specific procedures for suspension in Section 616 and in Section 618. Suspension is a power which originates with the Secretary, and both sections empower the Secretary to suspend operating privileges. Under § 102 of The Vehicle Code, the term Secretary is defined as "The Secretary of Transportation of this Commonwealth." Therefore, from the language of the statute, it is explicit that the only person empowered to suspend operating licenses or operating privileges in this Commonwealth is the Secretary of Transportation.
Act of April 29, 1959, P.L. 58, § 616 and § 618, as amended (75 Pa.C.S.A. § 616 and § 618).
Act of Jan. 10, 1972, P.L. 748, No. 177, § 1, as amended ( 75 Pa.C.S.A. § 102).
The sentence imposing a fine of $250.00 and directing the appellant to pay the costs of prosecution is affirmed. The portion of the sentence directing appellant to forward his operator's license to the Clerk of Courts of Dauphin County is vacated.
I join Judge PRICE'S Opinion with the understanding on my part that our decision does not imply that the Court is without power and authority to proscribe the operating of a motor vehicle by one convicted under Section 1037 of The Vehicle Code (operating a motor vehicle under the influence of intoxicating liquor or drugs) as a condition of probation for a length of time not exceeding the period of probation.