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COMMONWEALTH PENNSYLVANIA v. JAMES ELIASON (05/27/86)

filed: May 27, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES ELIASON, APPELLANT



Appeal from the Judgment of Sentence of May 8, 1985, in the Court of Common Pleas of Northampton County, Criminal Division, at No. 661-1984

COUNSEL

Stephen L. Shields, Bethlehem, for appellant.

John F. Spirk, Assistant District Attorney, Easton, for Commonwealth, appellee.

Brosky, Johnson and Hester, JJ. Brosky, J., files his dissenting opinion.

Author: Per Curiam

[ 353 Pa. Super. Page 322]

On December 3, 1984, appellant was adjudged guilty of driving under suspension, 75 Pa.C.S. § 1543(b), and driving an unregistered vehicle, 75 Pa.C.S. § 1301, as a result of operating a three-wheeled vehicle on a public highway for

[ 353 Pa. Super. Page 323]

    approximately ten seconds. Immediately following trial, appellant was sentenced to ninety days incarceration and a $1,000 fine. Post-verdict motions were filed, argued, and denied on May 6, 1985. From that order, appellant filed this appeal.

In appeals from criminal convictions, the notice of appeal must be filed within thirty days of sentence. See Commonwealth v. Martin, 346 Pa. Super. 129, 499 A.2d 344 (1985); Pa.R.A.P. 903(a).*fn1 Since appellant was sentenced on December 3, 1984, he should have filed a notice of appeal within thirty days of that date. Instead, appellant filed his post-verdict motions within thirty days of December 3, 1984. These motions were, in fact, timely filed, and were considered and disposed of by the lower court. Nevertheless, his notice of appeal filed June 6, 1985, is untimely since it was beyond the thirty-day time period which began running on December 4, 1984.

We cannot, however, quash this appeal as untimely for the following reasons. The lower court improperly pronounced verdict and sentence simultaneously. Commonwealth v. Martin, supra; Commonwealth v. Ivey, 307 Pa. Super. 274, 453 A.2d 349 (1982). Furthermore, the lower court failed to inform appellant of his appellate rights, although he was apprised of his right to file post-verdict motions. Our rules of appellate procedure require the trial judge to advise a defendant on the record at the time of sentencing of his right to file an appeal and the time within which he must exercise that right. See Pa.R.Crim.P. 1405. In light of these procedural errors, we cannot deny appellant his right to appellate review.*fn2

[ 353 Pa. Super. Page 324]

Appellant raises three issues on appeal.*fn3 First, he contends that his conviction for driving an unregistered motor vehicle cannot stand inasmuch as a three-wheeler is incapable of being registered. Second, he argues that the court erred in convicting him of driving under suspension when a three-wheeler is not a motor vehicle within the meaning of 75 Pa.C.S. § 1543(b). Finally, appellant asserts that the infraction with which he was charged was de minimis, so it does not warrant a conviction. Having closely reviewed appellant's arguments, we conclude that they lack merit; we therefore affirm.

The offense of driving an unregistered vehicle prohibits

     any person to drive or for an owner knowingly to permit to be driven upon any highway any vehicle of a type required to be registered under ...


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