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COMMONWEALTH v. COLE (09/15/72)

decided: September 15, 1972.

COMMONWEALTH
v.
COLE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1966, No. 220, in case of Commonwealth of Pennsylvania v. Rayford Cole.

COUNSEL

Herbert L. Floum, for appellant.

Milton M. Stein, Assistant District Attorney, with him William P. Boland and Steven H. Goldblatt, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Hoffman

[ 222 Pa. Super. Page 230]

On August 4, 1966, appellant was tried on two indictments, each charging him with assault with intent to rob and robbery. Appellant was found guilty on one of the bills, and not guilty on the other bill. On October 21, 1966, the trial judge placed the appellant on probation for five years under strict supervision. On October 30, 1970, probation was revoked and the

[ 222 Pa. Super. Page 231]

    appellant was sentenced to a period of imprisonment of not less than three nor more than ten years.

Appellant contends that a sentence with a maximum of ten years, which exceeded the original five-year period of probation set by the trial judge, was imposed unlawfully and constituted double jeopardy.

A trial judge in Pennsylvania has the power to either suspend or defer the imposition of a prison sentence.*fn1 The consequences of a violation of probation depend on which of the two alternative courses the trial judge has previously taken.

If a defendant is sentenced, but the judge chooses to suspend sentence pending a period of probation, the trial judge may re-sentence the defendant if he violates that probation. The maximum period of the re-sentence is limited, however, to the maximum term under which the defendant was originally sentenced. Our Supreme Court has held that a "modification of a sentence imposed on a criminal defendant which increases the punishment constitute[s] further or double jeopardy." Commonwealth v. Silverman, 442 Pa. 211, 215, 275 A.2d 308 (1971); see also Commonwealth v. Davy, 218 Pa. Superior Ct. 355, 280 A.2d 407 (1971).

[ 222 Pa. Super. Page 232]

The instant case does not involve a situation where appellant was re-sentenced after a suspended sentence.*fn2 By exercising the statutory option of imposing a period of probation in lieu of sentencing, the court defers sentencing a defendant to a fixed term of imprisonment until such time as the defendant has violated the conditions of his probation. In other words, the setting of the term of probation is not a term of sentence, and may not act as a limitation on the court to impose a sentence for a term of years greater than the probationary period, not in excess of the maximum fixed by law for the particular offense. The sentence imposed by the court in the instant case -- a period of imprisonment of not less than three years nor more than ten years -- was within the ...


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