State ex rel. Campbell v. Fortier

409 A.2d 1223, 122 R.I. 559, 1980 R.I. LEXIS 1421

• Court: Supreme Court of Rhode Island
• Decided: January 11, 1980
• Docket: No. 78-46-C.A.
• Status: Published

Opinion

OPINION

PER CURIAM.

This matter comes before the court on a consolidated appeal from the defendants' several convictions of parking on a sidewalk in violation of Traffic Regulation 5754 of the city of Providence. The defendants argue their appeal on two grounds. We consider the second ground, the state’s failure to introduce into evidence a provision stating a penalty for violation of the regulation, dispositive of this appeal.

The state concedes that it failed to introduce a penalty provision into the Superior Court record.

* The state claims, however, that the defendants’ failure to raise the issue below forecloses our consideration on appeal. We reject this contention in light of State v. Tessier, 100 R.I. 210, 213 A.2d 699 (1965). There, we raised the no-penalty question sua sponte, stating that it is “the duty of this court to dismiss the complaint.” Id. at 212, 213 A.2d at 700. We will, therefore, follow our decision in State v. Tessier and allow the defendants to raise this issue for the first time on appeal.

We reverse the defendants’ convictions because no penalty provision appears in the record, and we remand the case to Superior Court with directions to dismiss the complaints.

The state’s concession distinguishes this matter from State v. Kalian, 408 A.2d 610 (R.I. 1979), in which we sustained a conviction under the minimum housing ordinance of the city of Providence. There we determined that an ordinance stated a penalty sufficient to establish the criminal character of the prohibited conduct by referring to a separate penalty provision. Traffic Regulation 5754 neither states a penalty nor refers to an applicable penalty provision.