Theodore R. Gardner, Allentown, for appellant.
M. Jack Morgan, Dist. Atty., Allentown, for appellee.
Before Rhodes, P. J., and Hirt, Dithrich, Ross, Gunther and Wright, JJ.
[ 174 Pa. Super. Page 39]
Relator was charged with operating a motor vehicle while under the influence of intoxicating liquor. He entered a plea of nolo contendere, and on January 7,
[ 174 Pa. Super. Page 401953]
, the Court of Quarter Sessions of Lehigh County pronounced sentence: 'Eo Die, the sentence of the Court is that you, John O. Saeger, pay a fine of $300.00, pay the costs of prosecution and be placed in the Institute of the Pennsylvania Hospital, at 111 North 49th Street, Philadelphia, Pennsylvania, under the care and treatment of Dr. Kenneth Appel and to remain there until the further order of this Court and further sentence is deferred meanwhile.' Relator paid the fine and costs on that same day. On January 28, still within the January Sessions, relator was again brought before the court and this sentence was entered: 'Now, January 28, 1953, the sentence heretofore entered on January 7th, 1953, is revoked and, in lieu thereof, the sentence of the Court is that you, John O. Saeger, pay a fine of $300.00, pay the costs of prosecution and undergo imprisonment in the Lehigh County Prison for a period of ninety (90) days, * * *.' Relator petitioned the Court of Common Pleas of Lehigh County for a writ of habeas corpus. After a hearing, the petition was denied and relator appealed.
Both the learned court below and the District Attorney of Lehigh County, representing appellee, concede that that portion of the court's sentence of January 7 by which further sentence was indefinitely postponed is void and of no effect. Commonwealth v. Peterson, 172 Pa. Super. 341, 94 A.2d 582, and cases cited therein.
'The power of the court to reconsider and alter its sentence, and even increase the punishment, during the term at which it was pronounced, if nothing has been done under it, is recognized generally in this country * * *. But where the sentence has been fully executed the power of the court to subject the defendant to additional punishment, whether by a new sentence or an amendment of the original, is gone.' Com. v. Pennsylvania
[ 174 Pa. Super. Page 41]
R. R., 41 Pa. Super. 29, 32, 33; Com. ex rel. Laughman v. Burke, 171 Pa. Super. 343, 348, 90 A.2d 622; Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872.
In its opinion of February 16, 1953, denying relator's petition, the court below referred to Com. v. Penna. R. R., supra, but denied its application to the instant case: 'We are, however, still within the term at which Saeger was sentenced and we believe that (under the doctrine of Commonwealth v. Hottle, 139 Pa. Super. 128, 133, 11 A.2d 524, 526) the Court, while its attempt to defer sentence of imprisonment generally was void, still retained its right within the term to impose that part of the penalty, imprisonment, which had not already been imposed and executed.' Defendant in the Hottle case, cited by the court below, received a sentence of fine and costs, under the provisions of the Act of March 31, 1860, P.L. 382, § 52, 18 P.S. § 1561. After they had been paid, but within the same term of court, the sentence was revoked and a capias issued. Defendant was apprehended and a new sentence pronounced, a fine and imprisonment. In affirming the sentence, this Court said: 'The appellant contends, however, that the imposition of the fine on September 16, 1937, was the imposition of a sentence and final judgment, and therefore, the court had no power to alter the original sentence by reason of the fact that said sentence had been fully executed upon payment of the fine. There would be considerable force to appellant's contention in this respect, if it were not for the ...