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COMMONWEALTH v. TOMLIN (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
TOMLIN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, Nos. 900 and 901, in case of Commonwealth of Pennsylvania v. James Tomlin.

COUNSEL

John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.

Steven H. Goldblatt, Assistant District Attorney, with him David Richman, John H. Isom, and Mark Sendrow, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Concurring Opinion by Spaeth, J. Dissenting Opinion by Van der Voort, J. Watkins, P. J., joins in this dissenting opinion.

Author: Hoffman

[ 232 Pa. Super. Page 148]

On June 29, 1972, appellant was tried and convicted on two bills of indictment charging him with aggravated robbery and aggravated assault. The trial court sentenced him to one to five years' imprisonment on the bill charging aggravated robbery and suspended sentence on the bill charging aggravated assault. The trial court, however, vacated and deferred sentence pending motions in arrest of judgment and for a new trial which were filed on July 5, 1972. On January 4, 1973, the motions were withdrawn. After the reception of psychiatric reports, the trial court sentenced appellant to seven years' probation. Ten months later, appellant appeared before the original trial court for violation of probation. The court revoked probation and imposed a sentence of three and one-half to seven years imprisonment.

The appellant contends that the sentence of three and one-half to seven years subsequent to an initial

[ 232 Pa. Super. Page 149]

    imposition of a one to five year term is improper.

It is clearly the law in Pennsylvania 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); Commonwealth v. Jackson, 218 Pa. Superior Ct. 357, 280 A.2d 422 (1971). If a trial court suspends imposition of a sentence and places the defendant on probation, the court is not limited by a term of probation in sentencing the defendant who has violated a condition of probation. Commonwealth v. Cole, 222 Pa. Superior Ct. 229, 294 A.2d 824 (1972). Cole, however, articulates a caveat to that power: " 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." 222 Pa. Superior Ct. at 231. (Emphasis added.)

In Commonwealth v. Scheetz, 217 Pa. Superior Ct. 76, 268 A.2d 193 (1970), the appellant received a sentence of eight months to three years which was changed a month later to a three year period of probation. Subsequent to a probation violation, the appellant was sentenced to a term of two to five years.*fn1 We held in

[ 232 Pa. Super. Page 150]

The case is remanded to the lower court for resentencing consistent ...


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