January 11, 1980.
PRESENT: Bevilacqua, C.J., Kelleher, Doris, Weisberger and Murray, JJ.
1. MUNICIPAL CORPORATIONS. Parking Violations. In prosecution for parking on sidewalk in violation of city traffic regulation, State's failure to introduce into evidence the provision stating penalty for violation required reversal of conviction and remand for dismissal of complaints.
2. MUNICIPAL CORPORATIONS. Appeal. Defendants' failure to raise in trial court the issue that State, in prosecution for parking on sidewalk in violation of city traffic regulation, had failed to introduce into evidence provision stating penalty for violation did not foreclose consideration of such issue on appeal.
Defendants were convicted in the Superior Court, Providence and Bristol Counties, Needham, J., of parking on a sidewalk in violation of city traffic regulation. On consolidated appeal, the Supreme Court held that: (1) the State's failure to introduce into evidence the provision stating penalty for violation required reversal of conviction and remand for dismissal of complaints, and (2) defendants' failure to raise such issue in trial court did not foreclose consideration of it on appeal.
Reversed and remanded with directions.
Dennis J. Roberts II, Attorney General, Stephen Lichatin III, Special Assistant Attorney General, Chief, Appellate Division, for plaintiff.
Aram K. Berberian, for defendant.
This matter comes before the court on a consolidated appeal from the defendants' several convictions of parking on a sidewalk in violation of Traffic Regulation 5754 of the city of Providence. The defendants argue their appeal on two grounds. We consider the second ground, the state's failure to introduce into evidence a provision stating a penalty for violation of the regulation, dispositive of this appeal.
[1, 2] The state concedes that it failed to introduce a penalty provision into the Superior Court record. The state claims, however, that the defendants' failure to raise the issue below forecloses our consideration on appeal. We reject this contention in light of State v. Tessier, 100 R.I. 210, 213 A.2d 699 (1965). There, we raised the no-penalty question sua sponte, stating that it is "the duty of this court to dismiss the complaint." Id. at 212, 213 A.2d at 700. We will, therefore, follow our decision in State v. Tessier and allow the defendants to raise this issue for the first time on appeal.
The state's concession distinguishes this matter from State v. Kalian, 122 R.I. 443, 408 A.2d 610 (1979), in which we sustained a conviction under the minimum housing ordinance of the city of Providence. There we determined that an ordinance stated a penalty sufficient to establish the criminal character of the prohibited conduct by referring to a separate penalty provision. Traffic Regulation 5754 neither states a penalty nor refers to an applicable penalty provision.
We reverse the defendants' convictions because no penalty provision appears in the record, and we remand the case to Superior Court with directions to dismiss the complaints.