State v. Perry
| Decision Date | 21 February 1974 |
| Docket Number | No. 1777-E,1777-E |
| Citation | 315 A.2d 60,112 R.I. 719 |
| Parties | STATE v. Edward F. PERRY, Jr. x. |
| Court | Rhode Island Supreme Court |
The defendant, Edward F. Perry, Jr., pleaded nolo in the Sixth Division District Court on September 9, 1971, and was ordered to pay a fine of $20 and costs for willfully failing to appear in court in answer to a summons, in violation of G.L.1956 (1969 Reenactment) § 12-7-11. He appealed to the Superior Court where, after a trial de novo before a judge sitting without a jury, he was adjudged guilty and again sentenced to pay a fine of $20 and costs. He is now here on a bill of exceptions.
The case had its beginnings on February 26, 1970, when defendant was stopped by a state police officer on Route 195 in Johnston for operating a motor vehicle at a speed of 61 miles an hour in a 50-mile-per-hour zone. That officer, instead of taking him into custody, gave him a summons directing him to appear in the Sixth Division District Court in Cranston at 9 a.m. March 13, 1970, to answer a complaint charging him with the speeding violation for which he had been apprehended. The defendant failed to respond to the call of the calendar on that date, and subsequently the instant complaint and warrant charging a violation of § 12-7-11 issued.
At the outset, and for the reasons noted in Stidhams v. McPherson,106 R.I. 295, 259 A.2d 114 (1969), we reject as completely lacking in merit the state's contention that defendant, by pleading nolo in the District Court, waived his right to appeal from the sentence imposed by that court to the Superior Court and thereafter to seek review in this court by a bill of exceptions. 1
We turn now to defendant's exceptions. His first is to the ruling sustaining the state's demurrer to his plea in abatement. In that plea he adverts to G.L.1956 (1969 Reenactment) §§ 12-4-2 and 12-6-2, as amended, which require that any complainant, not exempted by law, shall enter into a recognizance, with surety, conditioned upon his prosecuting the complaint 'with effect,' or in default, upon his paying any costs that may accrue to the state. The defendant agrees that § 12-6-6 exempts 'any member of the division of state police' from the requirement of providing surety for costs, but he argues that the complainant in this case fails to qualify for the exemption because the body of the complaint and warrant refers to him as 'of R.I. State Police,' rather than as a 'member' of that division.
While a stickler for preciseness might agree with defendant, it is abundantly clear that the alleged deficiency, if indeed it be a deficiency, is remedied by the designation on the cover or jacket of the complaint and warrant which identifies complainant as a 'member of R.I. State Police.' Even defendant does not question the adequacy of the description. Accordingly, the trial justice did not err when he sustained the state's demurrer to the plea in abatement.
Next, defendant contends that § 12-7-11 contravenes his due process rights under the federal and state constitutions. That section provides that a peace officer who is authorized to arrest without a warrant for a misdemeanor may instead summon the misdemeanant to appear at a designated court at a specified date and time to answer a complaint which will charge the offense for which he was apprehended.
Obviously, the authority to give the misdemeanant a summons rather than subject him to full custody arrest is...
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