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COMMONWEALTH PENNSYLVANIA v. JAMES M. FRIES (02/20/81)

filed: February 20, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES M. FRIES, APPELLANT



No. 127 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Crawford County, Criminal Division, at No. 141 of 1978

COUNSEL

Bruce M. Johnson, Meadville, for appellant.

Stephen Toole, Assistant District Attorney, Meadville, for Commonwealth, appellee.

Price, Brosky and Montgomery, JJ.

Author: Brosky

[ 284 Pa. Super. Page 423]

This appeal raises the question whether appellant's conviction for driving under the influence of alcohol, a misdemeanor, was barred by the provisions of 18 Pa.C.S.A. § 110*fn1 dealing with multiple prosecutions for different

[ 284 Pa. Super. Page 424]

    offenses arising out of the same "criminal episode." Appellant was charged with two offenses: driving under the influence and speeding, a summary offense. Appellant attempted to plead guilty to the summary offense by tendering payment of the fines and costs involved. The court below found that appellant's attempted guilty plea was not accepted by the district magistrate and that, therefore, he had not been convicted of the speeding charge since, under 18 Pa.C.S.A. § 109(3), a conviction results if there is, inter alia, ". . . a plea of guilty accepted by the court." [Emphasis added.] We agree, and will affirm.

On March 6, 1978, appellant, James Fries, was stopped on the highway for speeding. Because the state trooper detected the odor of alcohol on appellant's breath (which was later confirmed by a breathalyzer test), appellant was placed under arrest both for speeding*fn2 and for driving under the influence of alcohol.*fn3

On March 8, 1978, the trooper filed a criminal information charging appellant with driving under the influence, to

[ 284 Pa. Super. Page 425]

    which was attached a citation charging him with the summary offense of speeding.

On March 20, 1978, appellant appeared at the office of District Magistrate Randall stating to one of the secretaries that he wished to pay the fines and costs in connection with the speeding charge. He said nothing about the misdemeanor charge. The secretary, who did not check appellant's file first, accepted appellant's personal check. The Magistrate was at lunch at the time. When he returned and was informed by the secretary that she had accepted appellant's check without realizing that a misdemeanor charge was pending against him, the Magistrate immediately realized that a mistake had been made. He then dictated a letter to be sent to appellant stating that his payment on the speeding violation could not be accepted because a misdemeanor was pending at the same ...


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