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WILLIAM L. SMITH v. COMMONWEALTH PENNSYLVANIA (07/02/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 2, 1981.

WILLIAM L. SMITH, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE

Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of William L. Smith v. Commonwealth of Pennsylvania, Department of Transportation, No. 1588 Civil, 1979.

COUNSEL

James D. Flower, Jr., Myers, Myers, Flower and Johnson, for appellant.

Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel of Transportation, and Jay C. Waldman, General Counsel, for appellee.

President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 60 Pa. Commw. Page 320]

William L. Smith has appealed from an order of the Court of Common Pleas of Cumberland County affirming the one year revocation of Smith's motor vehicle operator's license by the Department of Transportation.

Effective February 2, 1977, Smith's operator's license was revoked for one year based on his conviction in August, 1976 of driving while under the influence of alcohol. Section 1037 of the Vehicle Code of 1959, Act of April 29, 1959, P.L. 58, as amended, formerly 75 P.S. § 1037, repealed by Section 7 of the Act of June 17, 1976, P.L. 162; a similar provision now appears at Section 3731 of the Vehicle Code, 75 Pa. C.S. § 3731. On December 24, 1977, while the revocation was in effect, Smith was stopped by a police officer and a traffic citation was issued charging him with "OPERATING WHILE UNDER SUSPENSION," and describing the nature of the offense as "DID OPERATE A MOTOR VEHICLE WHILE OPERATING PRIVILEGES SUSPENDED." The citation further stated that this offense was a violation of Section 1543 of the Vehicle Code, 75 Pa. C.S. § 1543. On January 5, 1978, Smith's wife paid the fine and costs for the offense and Smith thus stood convicted of driving while under suspension.

[ 60 Pa. Commw. Page 321]

    by the offense of which he was convicted -- whether of driving while under suspension or of driving while under revocation. See Bureau of Traffic Safety v. Antram, 48 Pa. Commonwealth Ct. 135, 409 A.2d 492 (1979). The Department never received a certified record showing that Smith had been convicted of driving while under revocation. It received a certified record of conviction of driving while under suspension. Accordingly, Smith's operator's license may be revoked under Section 1543(b) of the Vehicle Code only for six months. This result may not be avoided on the ground that the police officer charged Smith with the wrong offense. Cf. Commonwealth v. Hoffman, 230 Pa. Superior Ct. 444, 331 A.2d 805 (1974) (a person cannot be convicted and sentenced for a crime of which he is not charged).

Smith also contends that under Section 1544 of the Vehicle Code, 75 Pa. C.S. § 1544, the Department may only extend the duration of his first license revocation and thus was without authority to revoke his operator's license after restoration of his license upon the expiration of his first revocation. Section 1544(d) of the Vehicle Code, 75 Pa. C.S. § 1544(d) provides in part that "[w]hen any person's record shows a conviction calling for revocation of the operating privilege during a period of revocation, the department shall extend the existing period of revocation for the appropriate period."*fn2 Smith's conviction for driving while under suspension was not entered upon his record until March 2, 1979,*fn3 after

[ 60 Pa. Commw. Page 323]

    his initial revocation expired on February 10, 1978.*fn4 Thus, Smith's record did not show a conviction calling for revocation of his operating privileges during the period of his initial revocation and Section 1544 had no applicability to the second revocation. See Chappell v. Commonwealth, 59 Pa. Commonwealth Ct. 504, A.2d (No. 1203 C.D. 1979, filed June 5, 1981).

Order reversed; record remanded to the Department for the issuance of an official notice consistent with this opinion.

Order

And Now, this 2nd day of July, 1981, the order of the Court of Common Pleas of Cumberland County, No. 1588 Civil 1979, affirming the Department of Transportation's revocation of William L. Smith's Operator's license for one year, is reversed. The Official Notice of the Department of Transportation, dated March 9, 1979, revoking the motor vehicle operator's license of William L. Smith for a period of one year, is corrected to be a period of six months and, as modified, is affirmed. The record is remanded to the Department of Transportation for issuance of an official notice consistent with this opinion.

Disposition

Reversed and remanded.


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