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COMMONWEALTH EX REL. MILK v. MARONEY. (06/13/62)

June 13, 1962

COMMONWEALTH EX REL. MILK, APPELLANT,
v.
MARONEY.



Appeal, No. 64, April T., 1962, from order of Court of Common Pleas of Allegheny County, Jan. T., 1962, No. 13, in case of Commonwealth ex rel. James Milk v. James F. Maroney, Superintendent. Order, as modified, affirmed.

COUNSEL

M. H. Matson, for appellant.

Martin Lubow, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 198 Pa. Super. Page 443]

OPINION BY MONTGOMERY, J.

In this habeas corpus proceeding relator, James Milk, raises two questions:

(a) When a sentence is suspended with the condition that it will be imposed upon violation of the law in the future, is a conviction, in accord with due process of law, necessary before the said suspended sentence can be imposed?

(b) The legality of his present sentence. Relator, while serving a sentence of 10 to 20 years

[ 198 Pa. Super. Page 444]

    in the Western State Diagnostic and Correctional Institution, escaped. He was apprehended, indicted, plead guilty, and was sentenced 7 1/2 to 15 years, but his sentence was suspended on the following conditions: "And in order to guarantee their good faith and that nothing in the future will take place such as this, I am at this time suspending sentence, which means, upon violation of the law in the future that these defendants may be sentenced as follows James Milk 7 1/2-15 ..."

Subsequently, relator attempted to escape again. No information was sworn out for this attempt and he was not indicted for same, but a rule to show cause why the suspended sentence should not be revoked was issued and made absolute after hearing. Thereupon the sentence of 7 1/2 to 15 years was imposed.

Having been paroled on the original 10 to 20 year sentence, he now seeks his discharge for the ...


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