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COMMONWEALTH v. COLDING (12/22/75)

decided: December 22, 1975.

COMMONWEALTH
v.
COLDING, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 1938, in case of Commonwealth of Pennsylvania v. Ernest Colding.

COUNSEL

John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, for appellant.

Hugh Colihan, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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 Jacobs, J. Concurring Opinion by Van der Voort, J. Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this opinion.

Author: Jacobs

[ 237 Pa. Super. Page 614]

On December 12, 1972, appellant pled guilty to aggravated robbery on Bill No. 1938 of October Term, 1972. On the same date, he was sentenced to a term of confinement*fn1 for "time in to four years."*fn2 On December 15, 1972, a hearing was held to reconsider the sentence. The trial court vacated the sentence of December 12, 1972, and placed appellant on four years probation with the same condition as to restitution. On June 5, 1974, appellant was found to have violated the conditions of his probation. The trial court revoked appellant's probation, and sentenced him to a term of confinement of one and one-half to three years, sentence to be computed from January 8, 1974. This appeal followed.

The appellant contends that the sentence imposed after revocation of probation is violative of the double jeopardy proscription*fn3 in that the minimum sentence of

[ 237 Pa. Super. Page 615]

    one and one-half years exceeds the minimum sentence originally imposed.

Initially, we must decide whether or not the appellant has properly invoked the proscription against double jeopardy; we must determine how many sentences have been imposed. See Commonwealth v. Foster, 229 Pa. Superior Ct. 269, 324 A.2d 538 (1974).

In the instant case, the original sentence was "vacated." In Commonwealth v. Tomlin, 232 Pa. Superior Ct. 147, 150, 336 A.2d 407, 409 (1975), we stated that the effect of vacating a sentence is indistinguishable from cases in which a definite sentence is suspended.*fn4 Vacating the original sentence does not render the sentence void for purposes of double jeopardy. Therefore, our attention is properly focused on two sentences, the original sentence

[ 237 Pa. Super. Page 616]

    of "time in to four years," and the subsequent sentence of one and one-half to three years.*fn5

The seminal case involving this claim of double jeopardy is North Carolina v. Pearce, 395 U.S. 711 (1969), which dealt with the problem of reconviction and resentencing where on appeal by the defendant, the original sentence had been set aside. The Court in North Carolina v. Pearce, supra at 723 held ". . . that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction." However, the Court concluded that due process ". . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process ...


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