State v. Waters

128 A.2d 556, 50 Del. 257, 1957 Del. Super. LEXIS 62

Opinion

Layton, J.:

The State’s motion to dismiss the first appeal is denied because the sentence comes directly within the provisions of Art. IV, Sec. 28 of the Constitution, Del. C. Ann. providing for a right of appeal in all cases where the sentence shall be imprisonment exceeding one month or a fine exceeding $100.00. See State v. Stevens, 3 W. W. Harr. 479, 139 A. 78.

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On the second charge, the State’s motion to dismiss the appeal is granted. Defendant contends that here again the sentence falls within the provisions of the Constitution above referred to because in default of payment of the fine, defendant is sentenced to 60 days in jail. In my opinion, however, the 60 day provision is not a part of the sentence itself but a method to enforce payment of the fine. Mullin v. State, 8 W. W. Harr. 533, 194 A. 578. Accordingly, the sentence does not come within the purview of Art. IV, Sec. 28 of our Constitution, Del. C. Ann. and, under the holding of Martin v. State, 10 Terry 344, 116 A. 2d 685, the right of appeal provided by Title 21 Del. C. § 708 of the Motor Vehicle Law is waived by the plea of guilty.

If there is merit in the Attorney General’s argument that the right of appeal in this instance should be limited to a review of the sentence above and not amount to a trial de novo, such contention is not properly before me at this stage of the proceeding.