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COMMONWEALTH v. LEMLEY (06/22/71)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 22, 1971.

COMMONWEALTH
v.
LEMLEY, APPELLANT

Appeal from judgment of Court of Common Pleas of Washington County, Nov. T., 1966, No. 141, in case of Commonwealth of Pennsylvania v. Harry Leroy Lemley.

COUNSEL

John P. Liekar, Public Defender, for appellant.

Paul M. Petro, Assistant District Attorney, and Jess D. Costa, District Attorney, for Commonwealth, appellee.

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

Author: Hoffman

[ 218 Pa. Super. Page 351]

Appellant pled guilty to burglary and larceny and was sentenced to four to eight years in prison. After sentencing he was taken to the county jail, where he allegedly threatened a police officer. Shortly thereafter he was returned to the courtroom, where the original sentence was vacated and a sentence of five to ten years imposed. A later petition for reconsideration of sentence was denied.

Subsequently, appellant filed a Post Conviction Hearing Act petition alleging that his resentencing was illegal. From denial of this petition the instant appeal followed.

In the recent case of Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), our Supreme Court held that a modification of a sentence imposed on a criminal defendant which increases the punishment constitutes double jeopardy. Here the original sentence of four to eight years was increased to five to ten years after appellant had begun to serve it. Under Silverman this was a violation of double jeopardy.

The judgment of sentence is vacated and the case is remanded to the lower court for resentencing consistent with this opinion.

Disposition

Judgment of sentence vacated and case remanded for resentencing.

19710622

© 1998 VersusLaw Inc.



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