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COMMONWEALTH PENNSYLVANIA v. MITCHELL N. FILIUS (05/13/85)

submitted: May 13, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MITCHELL N. FILIUS, APPELLEE



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC8307178A.

COUNSEL

Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.

Spaeth, President Judge, and Rowley and Wieand, JJ.

Author: Wieand

[ 346 Pa. Super. Page 435]

When a defendant has been convicted of driving while under the influence of alcohol, does the sentencing court have discretion to place him on probation in lieu of sentencing him to prison for a minimum of 48 hours as mandated

[ 346 Pa. Super. Page 436]

    by statute? The sentencing court in this case expressed disagreement with legislatively mandated sentences of imprisonment and sentenced Mitchell N. Filius, who had entered a plea of guilty, to pay a fine of $300.00 and probation for a period of six months. We hold that this was an abuse of discretion; and, therefore, we reverse.

It is without question that the "legislature has exclusive power to determine the penological system of the Commonwealth, and it alone can prescribe the punishments to be meted out for crime." Commonwealth v. Bozzi, 178 Pa. Super. 224, 230, 116 A.2d 290, 293 (1955), quoting Commonwealth ex rel. Green v. Keenan, 176 Pa. Super. 103, 106, 106 A.2d 896, 898 (1954). Accord: Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 587, 28 A.2d 897, 900 (1942); Commonwealth v. Hernandez, 339 Pa. Super. 32, 38, 488 A.2d 293, 297 (1985); Commonwealth v. Stone, 229 Pa. Super. 24, 26, 323 A.2d 184, 185 (1974).

The legislature, at 75 Pa.C.S. ยง 3731(e)(1), has provided that:

[a]ny person violating any of the provisions of this section is guilty of a misdemeanor in the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of: (1) not less than 48 consecutive hours. (Emphasis added.)

This section, beyond question, imposes a mandatory, minimum sentence of imprisonment for not less than 48 hours whenever a person has been convicted of driving while under the influence of alcohol.

This is clear from the legislature's use of the word "shall." See: Commonwealth v. Pryor, 347 Pa. Super. 241, 500 A.2d 811 (1985). The use of the word "shall" when referring to the obligation of the court is intended to convey a lack of discretion on the part of the sentencing court. Cf. Zimmerman v. O'Bannon, 497 Pa. 551, 558-559, 442 A.2d 674, 678 (1982). The same intent is conveyed by the language of ...


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