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COMMONWEALTH v. SWAVELY (07/18/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: July 18, 1974.

COMMONWEALTH
v.
SWAVELY, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, July T., 1972, No. 487, in case of Commonwealth of Pennsylvania v. Nelson Swavely.

COUNSEL

Calvin S. Drayer, Jr., and Timothy F. Hennessey, Assistant Public Defenders, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 229 Pa. Super. Page 492]

In this case appellant contends that the lower court erred in not sentencing him under an act which reduced the penalty for the crime he committed and became effective after commission of the crime but before sentence was imposed. We agree with appellant and, therefore, remand for resentencing.

[ 229 Pa. Super. Page 493]

On January 23, 1972, appellant was arrested and charged with operating a motor vehicle after suspension of operating privileges under § 624(6) of The Vehicle Code, Act of April 29, 1959, P. L. 58, § 624(6), as amended, 75 P.S. § 624(6). At the time of appellant's arrest, the violation of § 624(6) was a misdemeanor for which the penalty was: ". . . a fine of not less than one hundred dollars ($100.00) and not more than five hundred dollars ($500.00) and costs of prosecution, or undergo imprisonment for not more than three (3) years, or suffer both such fine and imprisonment." Act of April 29, 1959, P. L. 58, § 624, as amended, 75 P.S. § 624. On May 26, 1972, the penalty provision was amended to read: "Any person violating any of the provisions of clauses (6) or (7) of this section for the first offense, shall, upon summary conviction thereof, be sentenced to pay a fine of not less than one hundred dollars ($100.00) or more than two hundred dollars ($200.00) and costs of prosecution, or to undergo imprisonment for not more than two (2) months, or both." Act of May 26, 1972, P. L. 313, No. 84, § 1, 75 P.S. § 624 (Supp. 1973-74).*fn1 The amended penalty provision provided for a harsher punishment for second offenders, but this was appellant's first offense.

On November 13, 1972, appellant entered a plea of guilty to the violation of § 624(6). He received a suspended jail sentence and was released on probation for a period of 18 months. Appellant, however, violated the terms of his probation, and on August 6, 1973, was sentenced to not less than 3 nor more than 23 months in Montgomery County Prison. It was from the imposition of this sentence that appellant has appealed.

Appellant claims that he should have received the benefit of the amendment to § 624 which reduced the

[ 229 Pa. Super. Page 494]

    penalty for the offense he committed. On the other hand, the lower court concluded that it was required to impose the penalty applicable at the time of the commission of the offense.

We were faced with a similar question in Commonwealth ex rel. Milk v. Maroney, 198 Pa. Superior Ct. 442, 181 A.2d 702, allocatur refused, 198 Pa. Superior Ct. xxix (1962), cert. denied, 372 U.S. 920 (1963). In that case a sentence of 7 1/2 to 15 years was imposed upon petitioner for prison breach.*fn2 However, before petitioner was sentenced an amendment became effective which provided that such a sentence should not exceed 10 years.*fn3 Our Court held that "[t]he re-enacted statute providing the lesser penalty should have been followed." Id. at 445, 181 A.2d at 703.*fn4

Under the facts of the present case where the amendment to the penalty provision of § 624 of The Vehicle Code*fn5 did not contain any "saving clause" to continue the effect of the prior repealed penalty provision,*fn6 we hold that the lower court erred in sentencing appellant under the repealed penalty provision of § 624 of The Vehicle Code.

Remanded for resentencing.

Disposition

Remanded for resentencing.


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