Appeal from judgment of sentence of Court of Common Pleas of Bucks County, Nos. 422 and 423 of 1970, in case of Commonwealth of Pennsylvania v. Thomas Rooney.
John S. Thome, Jr., Assistant Public Defender, for appellant.
Peter F. Schenck, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Hoffman, J. Van der Voort, J., did not participate in the consideration or decision of this case.
[ 233 Pa. Super. Page 227]
Appellant raises two claims: first, that his prison sentence after a payment of monies to the county and a period of probation was illegal; second, that his failure to pay restitution was not willful and, therefore, not a violation of probation.
On April 30, 1971, appellant pleaded guilty to three separate charges of fraudulent conversion.*fn1 The judge imposed costs of prosecution, payment to the county in lieu of a fine, restitution, and probation on all the bills to which appellant pleaded guilty. The court used the same language on each bill: ". . . the court directs that you pay the costs of prosecution within six months, prison sentence be suspended, and you be placed on probation for a period of three years from this date. One of the conditions of the probation will be that you will pay an additional sum of $500 to the County of Bucks in lieu of a fine within three years, and that you will repay to the National Liberty Insurance Company the sum of $1,962 . . ." (emphasis added).
During the period of probation, the appellant paid the costs of prosecution and the sums payable in lieu of fines. He did not, however, pay restitution. Therefore, on May 23, 1974, the district attorney's office filed a petition for a determination that appellant was a probation violator. On June 24, 1974, a hearing was held after which the court found that appellant had violated probation. The court thereafter revoked probation and imposed concurrent sentence on the three bills of indictment of not less than one month nor more than five years plus restitution.
[ 233 Pa. Super. Page 228]
Appellant appeals from the court's revocation of probation and from the judgment of sentence.
Appellant's first contention is that by imposing a fine, the court at the time of the original sentence could not also place the appellant on probation. He argues alternatively that because the court suspended prison sentence and imposed three years probation after his guilty plea in 1971, the court was precluded from imposing a sentence for a term longer than three years after the revocation of probation. The appellant contends that a prison term longer than three years would constitute an increase in punishment and, therefore, be a violation of double jeopardy.
The appellant relies upon Commonwealth v. Peterson, 172 Pa. Superior Ct. 341, 94 A.2d 582 (1953), to support his claim that he could not be sentenced to probation and to pay a fine for the same crime: ". . . an order of probation can be entered only upon suspending the imposition of sentence or instead of imposing such sentence . . . In this instance however the defendant was sentenced to pay a fine, and 'Imposing a fine is such a sentence that after it is imposed the defendant cannot thereafter be put on probation': Commonwealth v. Denson, 157 Pa. Superior Ct. 257, 40 A.2d 895. A court may suspend sentencing a convicted defendant 'in toto' but it does not have the power to impose two sentences for a single offense by imposing a fine and suspending a prison sentence imposed in the first instance and, at a later term, superadding a second sentence of imprisonment." Peterson, supra, at 344-45, 94 A.2d at 583. Before a court can place a defendant on probation, the sentencing court must either first pronounce and then suspend sentence or give probation in lieu of sentence. See Act of May 7, ...