
    281 So.2d 666
    S. Y. (Youzema) DORCH v. CITY OF OPELIKA.
    5 Div. 112.
    Court of Criminal Appeals of Alabama.
    June 29, 1973.
    Rehearing Denied Aug. 14, 1973.
    James Noel Baker, Opelika, for appellant.
    Thomas S. Melton, Opelika, for City of Opelika.
   ALMON, Judge.

Appellant was convicted under a municipal ordinance making it a misdemeanor to impede a police officer in effecting a lawful arrest. Appellant, an indigent, was fined $100.00 and costs and in lieu of payment thereof, sentenced to fifty-one days hard labor.

A search of the record convinces us that the lower court’s finding of guilt should not be disturbed; moreover, the imposition of fine and the taxation of costs were proper. We are compelled, however, to hold the trial court in error for ordering appellant to hard labor upon his default in the payment of fine and costs. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130.

The United States Supreme Court in Tate, supra, held that an indigent’s right to equal protection of the laws is infringed when, because he is too impecunious to pay the fine, he is incarcerated in lieu thereof. Tate, supra, is controlling in this aspect of the case.

The judgment of conviction is affirmed and the cause remanded for sentencing in conformity with Tate, supra.

Affirmed. Remanded for proper sentencing.

All the Judges concur.  