Frabizzio v. State

• Decision Date: 28 May 1948
• Docket Number: 216
• Citation: 44 Del. 395,59 A.2d 452
• Court: Delaware Superior Court
• Parties: WILLIAM ANTHONY FRABIZZIO, D. B., v. THE STATE OF DELAWARE, P. B

59 A.2d 452

44 Del. 395

WILLIAM ANTHONY FRABIZZIO, D. B., v. THE STATE OF DELAWARE, P. B

No. 216

Superior Court of Delaware, New Castle

May 28, 1948

Newton White for defendant below.

Joseph H. Flanzer, Deputy Attorney-General, for the State.

CAREY J., sitting.

OPINION

CAREY, Judge.

No question has been raised concerning the validity of the so-called fine of ninety-five dollars, although the minimum fine required by the policy writing statute is One hundred dollars. At the argument, the defendant treated it as a valid fine and the State argued that it was not a fine or sentence at all, as will hereafter be seen. I shall therefore limit myself to the consideration of the only question argued viz., whether that portion of the order which imposed probation is valid in view of the other portion which directed the payment of a sum of money by the defendant.

The statute under which the Court below is empowered to grant probation to a criminal offender (4319,Sec. 4, Revised Code 1935) clearly contemplates probation in lieu of, and not in addition to, sentence. For example, it provides that, under certain conditions, the Court may direct his release "on his entering into a recognizance * * * to appear and receive sentence when called upon". Furthermore, it permits the Court, at any time within the period of the recognizance upon violation of the conditions of probation, to "issue process for his apprehension and * * * impose sentence upon him". Finally, it directs that the plea or verdict of guilty shall be stricken from the record, if he complies with all the terms and conditions of the probation. In brief, if the Court imposes sentence, it cannot grant probation; if it grants probation, it cannot impose sentence unless and until there occurs a violation of the terms and conditions of probation; sentence and probation cannot validly be coupled together in one order. See Commonwealth v. Smith, 130 Pa. Super. 536, 198 A. 812; Archer v. Snook, (D.C.) 10 F.2d 567.

Conceding the accuracy of the foregoing statements, the State nevertheless contends that the order in this case is valid in all respects for two reasons. First, it maintains that the word "sentence" as used in the probation statute means imprisonment only and does not include fine; wherefore it concludes that the Court may impose both fine and probation. Secondly, it avers that the payment of money required by the Court in this case was actually not a fine nor intended so to be, but was merely one of the terms or conditions of probation.

A "sentence" is the judgment formally pronounced by the Court upon the defendant after conviction in a criminal case, awarding the punishment to be inflicted. Black Law Dict. (3d.Ed.) 1602. A fine is a judgment of the Court. Dasey v. State, 21 Del. 457, 5 Penne. 457 62 A. 300; and payment thereof satisfies the judgment, State v. Seitz, 40 Del. 572, 1 Terry 572, 14 A.2d 710. A fine is just as much a sentence as is a term of imprisonment; in fact, it is the only sentence which can be legally imposed for the present offense. ...