City of Independence v. Peterson

ON MOTION FOR REHEARING

PER CURIAM:

In his motion for rehearing, appellant strenuously urges that the sentence imposed by the trial court in Case No. 61948 exceeded the maximum punishment authorized by the ordinance of the City of Independence. This ordinance was introduced in evidence but was not set out in the transcript. It has now been brought to the attention of this court and it appears that the following punishment is authorized for any person who drives a vehicle upon any street carelessly and heedlessly: “ * * * imprisonment in the place designated by law for a period of not less than three (3) days nor more than ninety (90) days, or by a fine of not less than fifteen dollars ($15) nor more than five hundred dollars ($500), or by both such fine and imprisonment.” The sentence imposed by the trial court in this cause was six (6) months in the county jail. This is obviously in excess of punishment authorized by this ordinance and is therefore erroneous. However, the rules of criminal procedure are applicable to this case and under the provisions of Criminal Rule 28.15, V.A.M.R., this error does not require the reversal of the judgment below; we are authorized to impose a proper sentence. Therefore, the judgment of the trial court is modified and the appellant, Gerald D. Peterson, is sentenced to be imprisoned for a period of ninety (90) days in the county jail. As so modified and corrected, the judgment and sentence of the trial court is affirmed. In all other respects, appellant’s motion for rehearing is overruled.