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COMMONWEALTH PENNSYLVANIA v. ROBERT CLAYTON RUDD (04/13/87)

submitted: April 13, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT CLAYTON RUDD, APPELLANT



Appeal from the Judgment of Sentence of September 26, 1986 in the Court of Common Pleas of Crawford County, Criminal Division, No. 1986-364 C.T.N. No. 584763-4.

COUNSEL

Bruce A. Barrett, Assistant Public Defender, Meadville, for appellant.

John F. Spataro, Assistant District Attorney, Meadville, for Com., appellee.

Beck, Johnson and Cercone, JJ. Beck, J., concurs in the result.

Author: Cercone

[ 366 Pa. Super. Page 474]

The question before us on appeal is whether a prior juvenile adjudication for driving under the influence of alcohol is a "conviction" for the purpose of mandatory minimum sentence enhancment under section 3731(e)(1) of the Vehicle Code. 75 Pa.C.S.A. § 3731. As an issue of first impression, we conclude that the trial court erred in treating for sentencing purposes appellant's former adjudication of delinquency as a prior conviction.

The facts in this matter are not in dispute. Appellant was arrested and charged with driving under the influence of alcohol on May 23, 1986. Subsequently, he entered a

[ 366 Pa. Super. Page 475]

    plea of guilty and was sentenced on September 26, 1986 to a mandatory minimum sentence of thirty (30) days. In determining sentence, the trial court considered a previous adjudication of delinquency for driving under the influence which occurred in 1982 when the appellant was 17 years of age. Appellant's Petition for Reconsideration of Sentence, urging that his juvenile adjudication not be considered a prior conviction for sentencing purposes, was denied. This timely appeal followed.

The source of our dilemma in this case is section 3731(e)(1) of the Vehicle Code. 75 Pa.C.S.A. § 3731(e)(1). This section, under which appellant was sentenced, provides in relevant part:

(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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