Opinion
No. 50947.
July 16, 1963.
CRIMINAL LAW: Operating motor vehicle while intoxicated, fourth 1 offense — additional imprisonment for nonpayment of fine void. A sentence upon conviction of operating a motor vehicle while intoxicated, fourth offense, of three years in the penitentiary and a fine of $1000 and in default of payment of fine additional imprisonment of one day for each $5 of the fine remaining unpaid was void to the extent that it imposed the additional imprisonment for nonpayment of the fine. Section 321.281, Code of 1962.
CRIMINAL LAW: Operating motor vehicle while intoxicated, fourth
offense — provision in sentence for additional imprisonment for nonpayment of fine deleted.321.281
Appeal from Jackson District Court — MATTHEW WESTRATE, Judge.
Sokol Sokol, of Maquoketa, for appellant.
Evan Hultman, Attorney General, and John H. Allen, Assistant Attorney General, for appellee.
A rehearing having been granted, the opinion filed in this cause April 9, 1963, reported in 121 N.W.2d 205, is hereby withdrawn and the following is substituted therefor.
Defendant was charged by county attorney's information, tried before court and jury and convicted of the crime of operating a motor vehicle while intoxicated, fourth offense, in violation of section 321.281, Code, 1962. He was sentenced to a term of three years in the men's penitentiary at Fort Madison, and to pay a fine not exceeding $1000. In default of payment of the fine defendant was to be imprisoned in the penitentiary for an additional time of one day for each $5 of the fine remaining unpaid. Defendant's appeal comes to us upon a clerk's transcript.
Section 321.281 provides the punishment for the crime charged is "for a third offense and each offense thereafter by imprisonment in the penitentiary for any term of years not less than one nor more than five, and the court may pronounce sentence for a lesser period than the maximum, the provisions of the indeterminate sentence law to the contrary notwithstanding."
[1] The fine imposed here and the additional imprisonment for its nonpayment are not authorized by the statute. This part of the judgment is a void act. State v. Shilinsky, 248 Iowa 596, 602, 603, 81 N.W.2d 444, 448, 449, and citations.
[2] We have the power under Code section 793.18 to "modify the judgment, or render such judgment as the district court should have done, * * * or reduce the punishment, * * *." See State v. Jackson, 251 Iowa 537, 547, 101 N.W.2d 731, 737; State v. Faught, 254 Iowa 1124, 1135, 120 N.W.2d 426, 432. We therefore delete from the judgment the provision regarding the fine of $1000 and additional imprisonment for its nonpayment. Except as modified by this deletion the judgment is affirmed. — Modified and affirmed.