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State v. Edwards , 255 Iowa 446 ( 1963 )


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  • 123 N.W.2d 4 (1963)

    STATE of Iowa, Appellee,
    v.
    Kenneth H. EDWARDS, Appellant.

    No. 56-50947.

    Supreme Court of Iowa.

    July 16, 1963.

    Sokol & Sokol, Maquoketa, for appellant,

    Evan Hultman, Atty. Gen., and John H. Allen, Asst. Atty. Gen., for appellee.

    PER CURIAM.

    A rehearing having been granted, the opinion filed in this cause April 9, 1963, reported in 121 N.W.2d 205, is hereby withdrawn and the following is substituted therefor.

    Defendant was charged by county attorney's information, tried before court and jury and convicted of the crime of operating a motor vehicle while intoxicated, fourth offense, in violation of section 321.281, Code, 1962, I.C.A. He was sentenced to a term of three years in the men's penitentiary at Fort Madison, and to pay a fine not exceeding $1000. In default of payment of the fine defendant was to be imprisoned in the penitentiary for an additional time of one day for each $5 of the fine remaining unpaid. Defendant's appeal comes to us upon a clerk's transcript.

    Section 321.281 provides the punishment for the crime charged is "for a third offense and each offense thereafter by imprisonment in the penitentiary for any term of years not less than one nor more than five, and the court may pronounce sentence for a lesser period than the maximum, the provisions of the indeterminate sentence law to the contrary notwithstanding."

    The fine imposed here and the additional imprisonment for its nonpayment are not authorized by the statute. This part of the judgment is a void act. State v. Shilinsky, 248 Iowa 596, 602-603, 81 N.W.2d 444, 448-449, and citations.

    We have the power under Code section 793.18 to "modify the judgment, or render such judgment as the district court should have done, * * * or reduce the punishment, * * *." See State v. Jackson, 251 Iowa 537, 547, 101 N.W.2d 731, 737; State v. Faught, 254 Iowa ___, 120 *5 N.W.2d 426, 432. We therefore delete from the judgment the provision regarding the fine of $1000 and additional imprisonment for its nonpayment. Except as modified by this deletion the judgment is affirmed.

    Modified and affirmed.