There was confusion in Supreme Court yesterday over whether a sentence handed down to John O'Donnell Fox by a Magistrate earlier this year was legal.

In a Supreme Court review of the sentence, Puisne Judge Charles-Etta Simmons heard that Fox, 34, of Pembroke, pleaded guilty in Magistrates' Court on July 26 to stealing bottle of Dewars whiskey from the MarketPlace.

Acting Magistrate Mark Pettingill sentenced him to three months in jail.

But as Fox had been on probation since December 19, 2003, for another offence in which he had received a two-year suspended sentence, Mr. Pettingill activated that sentence in addition to the three months for stealing the liquor.

After Magistrates' Court broke on July 26, however, a member of the DPP's office told Mr. Pettingill the law did not allow a Magistrate to sentence a defendant to imprisonment based on a suspended sentence that the Supreme Court had handed down.

Mr. Pettingill was informed that according to the 2001 amendments to the Criminal Code only the Supreme Court could deal such matters.

DPP Vinette Graham-Allen said yesterday she was not aware who had informed Mr. Pettingill.

After the court examined the law, it was pointed out that the Criminal Code was not clear on which court could act on the matter.

While other parts of the Criminal Code indicate that only the court that handled the original sentence can execute it or alter it, this part of the Criminal Code was not as specific.

"I am not actually sure where this places me," said Mrs. Justice Simmons said yesterday.

Mrs. Justice Simmons chose to uphold the sentence that Mr. Pettingill handed down on July 26 because the law did not specify that he was wrong in what he did.

She added that the Criminal Code is currently being amended and this aspect of the code should be clarified so that a similar incident would not happen in the future.