Commonwealth v. Scheetz

Superior Court of Pennsylvania

Commonwealth v. Scheetz

268 A.2d 193, 217 Pa. Super. 76, 1970 Pa. Super. LEXIS 1235

CourtSuperior Court of Pennsylvania

DecidedJune 12, 1970

DocketAppeal, 359

StatusPublished

Cited by14 cases

This text of 268 A.2d 193 (Commonwealth v. Scheetz) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Scheetz, 268 A.2d 193, 217 Pa. Super. 76, 1970 Pa. Super. LEXIS 1235 (Pa. Ct. App. 1970).

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Opinion

Opinion by

Hoffman, J.,

Appellant was found guilty of larceny and burglary on Bill No. 372 of June Term, 1966. On February 24, 1967, he was sentenced on that bill to a term of eight months to three years, sentence to be computed from July 21, 1966. On March 17, 1967, the trial court suspended its sentence and placed appellant on probation for three years. On February 6, 1969, appellant was found to have violated the terms of his probation. The trial court then revoked his probation and sentenced him to a term of two to five years, sentence to be computed from November 13, 1968.

Appellant filed a petition under the Post Conviction Hearing Act, alleging, among other things, (1) that the court was without power to impose a sentence of two to five years following revocation of his probation; and (2) that the court erred in not crediting him with the time he was incarcerated from July 21, 1968, to March 17, 1967, a period of almost eight months. From denial of his petition, this appeal followed.

*78 The general rule has been that a trial court cannot modify its sentence once the term of court or thirty days has passed. Commonwealth v. Mayloy, 57 Pa. (7 P. F. Smith) 291 (1868); Commonwealth v. Allen, 217 Pa. Superior Ct. 59, 266 A. 2d 799 (1970) (dissenting opinion). See also Act of June 1, 1959, P. L. 342, §1, 12 P.S. §1032 (Supp. 1970). But cf. Commonwealth v. Silverman, 217 Pa. Superior Ct. 68, 266 A. 2d 794 (1970) (dissenting opinion). Accordingly the trial court was empowered to reduce appellant’s sentence from a prison term of eight months to three years to a suspended sentence and place appellant on probation, within the term of court or thirty days. However, when appellant violated his probation without the term of court and thirty days, the court could do no more than reinstate the sentence originally imposed. It could not increase that sentence, as it attempted to do, so that appellant would serve two to five years. Accordingly, appellant’s sentence, which he began serving again November 13, 1968, should be eight months to three years.

With regard to that sentence, appellant should be given credit for the time served thereon, from July 21, 1966, until March 17, 1967. Act of May 28, 1937, P. L. 1036, §1, 19 P.S. §894. Accordingly, appellant’s sentence, which he began serving again November 13, 1968, should run for two years, four months, and four days, or until March 17, 1971, at its maximum.

The order of the lower court is reversed and the record is remanded so that the court may correct the sentence in accordance with this opinion.

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Opinion by

Hoffman, J.,

Appellant was found guilty of larceny and burglary on Bill No. 372 of June Term, 1966. On February 24, 1967, he was sentenced on that bill to a term of eight months to three years, sentence to be computed from July 21, 1966. On March 17, 1967, the trial court suspended its sentence and placed appellant on probation for three years. On February 6, 1969, appellant was found to have violated the terms of his probation. The trial court then revoked his probation and sentenced him to a term of two to five years, sentence to be computed from November 13, 1968.

Appellant filed a petition under the Post Conviction Hearing Act, alleging, among other things, (1) that the court was without power to impose a sentence of two to five years following revocation of his probation; and (2) that the court erred in not crediting him with the time he was incarcerated from July 21, 1968, to March 17, 1967, a period of almost eight months. From denial of his petition, this appeal followed.

*78 The general rule has been that a trial court cannot modify its sentence once the term of court or thirty days has passed. Commonwealth v. Mayloy, 57 Pa. (7 P. F. Smith) 291 (1868); Commonwealth v. Allen, 217 Pa. Superior Ct. 59, 266 A. 2d 799 (1970) (dissenting opinion). See also Act of June 1, 1959, P. L. 342, §1, 12 P.S. §1032 (Supp. 1970). But cf. Commonwealth v. Silverman, 217 Pa. Superior Ct. 68, 266 A. 2d 794 (1970) (dissenting opinion). Accordingly the trial court was empowered to reduce appellant’s sentence from a prison term of eight months to three years to a suspended sentence and place appellant on probation, within the term of court or thirty days. However, when appellant violated his probation without the term of court and thirty days, the court could do no more than reinstate the sentence originally imposed. It could not increase that sentence, as it attempted to do, so that appellant would serve two to five years. Accordingly, appellant’s sentence, which he began serving again November 13, 1968, should be eight months to three years.

With regard to that sentence, appellant should be given credit for the time served thereon, from July 21, 1966, until March 17, 1967. Act of May 28, 1937, P. L. 1036, §1, 19 P.S. §894. Accordingly, appellant’s sentence, which he began serving again November 13, 1968, should run for two years, four months, and four days, or until March 17, 1971, at its maximum.

The order of the lower court is reversed and the record is remanded so that the court may correct the sentence in accordance with this opinion.

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Bluebook (online)

268 A.2d 193, 217 Pa. Super. 76, 1970 Pa. Super. LEXIS 1235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-scheetz-pasuperct-1970.

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