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COMMONWEALTH v. SCRIVENS (06/28/72)

SUPREME COURT OF PENNSYLVANIA


decided: June 28, 1972.

COMMONWEALTH
v.
SCRIVENS, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1969, No. 1698, in case of Commonwealth of Pennsylvania v. William Scrivens.

COUNSEL

John G. Veith, for appellant.

Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Per Curiam

[ 448 Pa. Page 61]

After a plea of guilty to murder generally in 1970, appellant was found guilty of murder in the second degree and received a sentence of five years probation under the supervision of the State Parole Board. On April 5, 1971, this probation was revoked for cause and the court sentenced appellant to a prison term of 11 1/2 to 23 months. Subsequently, on April 8, 1971, the same judge "reconsidered" the earlier sentence and substituted a new one of one to five years imprisonment. The record indicates that no new information had been received by the court at the time of reconsideration, and no justification appears for the increase in appellant's punishment. The Commonwealth concedes that the higher sentence of April 8 constituted double jeopardy and must be vacated. Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971).

The judgment of sentence imposed on April 8, 1971, is vacated; the judgment of sentence imposed on April 5, 1971, is reinstated.

Disposition

Judgment of sentence of April 8, 1971 vacated; judgment of sentence of April 5, 1971 reinstated.

19720628

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