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COMMONWEALTH v. BENJAMIN (03/19/70)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 19, 1970.

COMMONWEALTH
v.
BENJAMIN, APPELLANT

Appeal from order of Court of Common Pleas of Montgomery County, June T., 1958, No. 345, in case of Commonwealth of Pennsylvania v. Roosevelt Benjamin.

COUNSEL

Richard M. Lovenwirth, Assistant Public Defender, for appellant.

Richard A. Devlin, and Stewart J. Greenleaf, Assistant District Attorneys, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Spaulding, J., dissents. Dissenting Opinion by Hoffman, J.

Author: Per Curiam

[ 216 Pa. Super. Page 225]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant pleaded guilty to a charge of larceny in 1958. He was sentenced to one year's probation, which term he completed without incident.

In 1969, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยง 1180, alleging that his plea was unlawfully induced. He argues that his conviction "may affect his job opportunities, his future sentences if he again violates the tenets of the Criminal Law, and it affects [appellant] in a multitude of other

[ 216 Pa. Super. Page 226]

    ways." Because no subsequent sentence was affected by the 1958 conviction, however, the lower court denied appellant's petition.

My dissenting opinion in Commonwealth v. Sheehan, 216 Pa. Superior Ct. 26, 30, 260 A.2d 496 (1969), contains my views as to whether the issue appellant presents is moot. I would permit appellant to seek relief under the Post Conviction Hearing Act. In the alternative, I would consider the petition as one for a writ of coram nobis or habeas corpus.

I would reverse the order of the lower court and remand this case for consideration of the petition.

19700319

© 1998 VersusLaw Inc.



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