decided: October 7, 1965.
COMMONWEALTH EX REL. ALEXANDER, APPELLANT,
Appeal from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1964, No. 5693, in case of Commonwealth ex rel. John Alexander v. Alfred T. Rundle, Superintendent.
John Alexander, appellant, in propria persona.
Joseph M. Smith, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Montgomery, J.
[ 206 Pa. Super. Page 529]
Following the filing of a per curiam order remanding this case to the lower court with instructions to conduct a hearing on relator's petition for a writ of habeas corpus, we granted the District Attorney's petition for reconsideration and permitted the parties to file additional briefs. The District Attorney exercised this right but the relator did not.
Relator is presently serving a sentence of not less than eight years nor more than twenty years in the State Correctional Institution at Philadelphia, imposed in 1955, for various crimes including aggravated robbery committed by him while on parole from the sentence imposed in 1938 about which he complains. Since the imposition of the 1955 sentence relator has been reparoled from the 1938 sentence. The date of his reparole is March 29, 1962, and it is from that date (less 27 days) that his 1955 sentence is effective.
[ 206 Pa. Super. Page 530]
The lower court dismissed relator's petition for the sole reason that he was being held on the 1955 sentence, which was admitted to be legal, and not on the 1938 sentence which he was attacking. President Judge Ervin dissented from our per curiam order aforementioned for this reason.
The requirement of restraint under the sentence being attacked is no longer a valid reason for denying a writ of habeas corpus by which a defendant seeks to attack fundamental defects in the administration of criminal justice. Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613, filed September 29, 1965.
The previous order of this Court filed June 17, 1965 is affirmed.
Order entered reversing order of court below and remanding record affirmed.
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