Appeal 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.
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.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Van der Voort, J.
[ 235 Pa. Super. Page 157]
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
[ 235 Pa. Super. Page 158]
Code,*fn1 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.
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.*fn2 The court further directed him to forward his operator's license to the Clerk of Courts of Dauphin County within 48 hours.
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. ...