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COMMONWEALTH PENNSYLVANIA v. JOHN J. WATERS (01/13/87)

submitted: January 13, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOHN J. WATERS, A/K/A JOHN WATERS



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 84-09-2430.

COUNSEL

Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.

Cavanaugh, Wickersham and McEwen, JJ.

Author: Wickersham

[ 361 Pa. Super. Page 155]

On April 21, 1984, John J. Waters was arrested and charged with driving under the influence of alcohol in violation of 75 Pa.C.S.A. ยง 3731. On May 15, 1985 he entered a plea of nolo contendere and was adjudicated guilty. This was his third conviction within seven years,

[ 361 Pa. Super. Page 156]

    and the Commonwealth argued that subsection 3731(e)(1)(iii) required the imposition of a minimum term of ninety (90) days imprisonment.*fn1

Section 3731(e) provides in pertinent part:

(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 $300 and serve a minimum term of imprisonment of:

(i) not less than 48 consecutive hours.

(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other ...


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