Opinion
No. 47427.
March 8, 1949.
CRIMINAL LAW: Fines — imprisonment on default — one day for each $3 1/3. Where on conviction of crime of uttering a forged instrument court imposed a fine of $1000, a provision in the judgment for a jail sentence of 333 days in case of nonpayment thereof was erroneous since under section 789.17, C., '46, the imprisonment should not exceed one day for each $3 1/3 of the fine that is unpaid.
Appeal from Polk District Court. — TOM K. MURROW, Judge.
Sawyer Leener, of Des Moines, for appellant.
Robert L. Larson, Attorney General, and Don Hise, First Assistant Attorney General, for appellee.
This case came to this court on a clerk's transcript. The defendant, W. Thomas Barnett, in a county attorney's information, was charged with uttering a forged instrument. He entered a plea of not guilty and was placed on trial and the jury returned a verdict of guilty. Defendant excepted to certain instructions given and asked for a new trial. Same was denied and sentence was pronounced on October 30, 1948, imposing a fine of $1000 and in default thereof that defendant be imprisoned in the county jail of Polk County, Iowa, for a period of three hundred thirty-three (333) days. Defendant has appealed.
We find no error in the record except as to the period of defendant's confinement in the event the fine imposed be not paid.
Section 718.2, Code of 1946, provides for a penalty, upon conviction of the crime charged, of a penitentiary or jail sentence, or a fine of not to exceed $1000. Section 789.17, Code of 1946, provides:
"A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, specifying the extent of the imprisonment, which shall not exceed one day for every three and one-third dollars of the fine."
Under section 718.2 above referred to, the court imposed a fine of $1000, and provided in default of payment thereof a jail sentence of three hundred thirty-three (333) days. By reason of section 789.17, the extent of the imprisonment imposed here for nonpayment of the fine could not exceed one day for each three and one-third dollars of the fine. State v. Gillman, 202 Iowa 428, 210 N.W. 435; State v. Dill, 197 Iowa 208, 210, 196 N.W. 992; State v. McCoy, 196 Iowa 278, 194 N.W. 265; State v. Williams, 195 Iowa 374, 376, 191 N.W. 790.
With directions to modify the judgment so that the extent of the imprisonment shall not exceed one day for each three and one-third dollars of the fine that is unpaid, the cause is — Modified, affirmed and remanded.