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COMMONWEALTH PENNSYLVANIA v. ROXANNE MARIE WAGNER (04/14/86)

filed: April 14, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROXANNE MARIE WAGNER, APPELLEE



Appeal from the Judgment of Sentence of January 30, 1985, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 8408716A.

COUNSEL

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com.

Melaine S. Rothey, Assistant Public Defender, Pittsburgh, for appellee.

Cirillo, Beck and Watkins, JJ.

Author: Beck

[ 352 Pa. Super. Page 297]

The Commonwealth appeals from a judgment of sentence. It asserts that the court erred in not sentencing appellee as a second offender of the Drunk Driving Act, 1982, December 15 P.L. 1268, No. 289, § 9, 75 Pa.C.S.A. § 3731. We agree and we vacate the judgment and remand for resentencing.

Appellee was arrested on March 30, 1983 for driving under the influence of alcohol and was thereafter placed in the Accelerated Rehabilitative Disposition program (ARD). In a group colloquy on June 24, 1983 before her acceptance of the program, appellee was told that this ARD program would be considered a first conviction if she violated the Act again. She was also told that upon a second conviction she would receive a mandatory minimum jail sentence of thirty days. Appellee accepted the ARD and successfully completed it.

On August 14, 1984, appellee was arrested for driving under the influence of alcohol. She pled guilty on November 19, 1984. The court sentenced her to pay a fine and the costs of prosecution and to a term of 48 hours to be served in ARC House.

The Commonwealth contends that the court was statutorily bound to impose a minimum jail sentence of thirty days. The court's failure to do so resulted in the imposition of an illegal sentence.

The Act provides for the violation of Section 3731:

(e) Penalty --

(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than ...


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