Opinion
Argued November 18, 1985.
Decided April 8, 1986.
Appeal from the Superior Court, Kennebec County.
David W. Crook, Dist. Atty., Pamela Ames, Asst. Dist. Atty. (orally), Augusta, for plaintiff.
Nelson G. Donnell, Litchfield, pro se (orally).
Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.
The Defendant, Nelson Donnell, appeals from two judgments entered after a jury trial in Superior Court (Kennebec County).
One of the two charges against the Defendant was for operating a motorcycle July 4, 1983, on Whitten Road, Augusta, while under the influence of intoxicating liquor, 29 M.R.S.A. § 1312-B. We have examined the issues raised by the Defendant in connection therewith, and they are without merit. We affirm the judgment.
The second of the two charges against the Defendant has a more unique history. The Defendant was charged, and found by the jury guilty, of then and there eluding a law enforcement officer in a high-speed chase after being signalled to stop, 29 M.R.S.A. § 2501-A(3), which is a Class D offense. After the verdict, and upon the Defendant's motion for acquittal, on September 14, 1984, the Superior Court vacated this conviction and imposed a sentence on the Defendant for failure to stop upon the signal of a uniformed law enforcement officer, 29 M.R.S.A. § 2501-A(2). The latter is a Class E offense, and it is distinguishable from the former by the requirement that the officer be uniformed. It is not a lesser included offense. 17-A M.R.S.A. § 13-A(2).
The Superior Court's order acquitted the Defendant of the crime of which the jury had found him guilty. Moreover, it was obvious error to sentence the Defendant for a crime with which he had not been charged and for which he had not stood trial.
The entry, therefore, must be:
Judgment of conviction of operating a motor vehicle while under the influence of intoxicating liquor affirmed.
Judgment of conviction of failing to stop upon the signal of a uniformed law enforcement officer vacated.
Remanded for entry of judgment of acquittal of eluding a law enforcement officer in a high speed chase after being signalled to stop.
All concurring.