Summary
In State v. Waters, 11 Terry 257, 128 A.2d 556, January 7, 1957, I denied the State's motion to dismiss defendant's appeal in a similar case upon the authority of State v. Stevens, 3 W.W. Harr. 479, 139 A. 78, adding by way of a footnote, "If there is merit in the Attorney General's argument that the right of appeal in this instance should be limited to a review of the sentence above and not amount to a trial de novo, such contention is not properly before me at this stage of the proceeding."
Summary of this case from State v. GaleOpinion
January 7, 1957.
LAYTON, J., sitting.
Ralph S. Baker, Deputy Attorney-General, for the State.
Everett F. Warrington for the defendant.
Defendant was arrested and brought to trial before a Magistrate on two charges (1) operating a motor vehicle while under the influence of intoxicating liquor (second offense) and (2) operating a motor vehicle during a period when his license had been revoked.
He pled guilty to both charges. On the first charge, he was sentenced to 30 days in jail and to pay a fine of $500. On the second charge, he was sentenced to pay a fine of $100 or, in default thereof, to 60 days in jail.
Defendant then filed a timely appeal in both cases to which motions to dismiss have been filed by the Attorney General upon the ground that the right to appeal in each case was waived by the plea of guilty.
The State's motion to dismiss the first appeal is denied because the sentence comes directly within the provisions of Art. IV, Sec. 28 of the Constitution, Del. C. Ann. providing for a right of appeal in all cases where the sentence shall be imprisonment exceeding one month or a fine exceeding $100.00. See State v. Stevens, 3 W.W. Harr. 479, 139 A. 78.
If there is merit in the Attorney General's argument that the right of appeal in this instance should be limited to a review of the sentence above and not amount to a trial de novo, such contention is not properly before me at this stage of the proceeding.
On the second charge, the State's motion to dismiss the appeal is granted. Defendant contends that here again the sentence falls within the provisions of the Constitution above referred to because in default of payment of the fine, defendant is sentenced to 60 days in jail. In my opinion, however, the 60 day provision is not a part of the sentence itself but a method to enforce payment of the fine. Mullin v. State, 8 W.W. Harr. 533, 194 A. 578. Accordingly, the sentence does not come within the purview of Art. IV, Sec. 28 of our Constitution, Del. C. Ann. and, under the holding of Martin v. State, 10 Terry 344, 116 A.2d 685, the right of appeal provided by Title 21 Del. C. § 708 of the Motor Vehicle Law is waived by the plea of guilty.