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COMMONWEALTH v. LIPTON (12/22/75)

decided: December 22, 1975.

COMMONWEALTH
v.
LIPTON, APPELLANT



Appeal from order of Court of Common Pleas of Bucks County, No. 553 of 1971, in case of Commonwealth of Pennsylvania v. Michael J. Lipton.

COUNSEL

H. John Witman, III, Assistant Public Defender, for appellant.

Peter F. Schenck, Assistant District Attorney, Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

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

Author: Van Der Voort

[ 238 Pa. Super. Page 126]

Appellant Michael J. Lipton was arrested in February, 1971, and charged with possession of a dangerous drug (LSD). After a trial before a judge sitting without a jury, appellant was found guilty and, on May 18, 1973, was placed on probation for three years. On July 11, 1973, the lower court, having been made aware that the probationary period exceeded the legal maximum by two years, reduced the term to one year. Subsequently, appellant was convicted of possession of marijuana, and his probation was revoked. Appeal was taken to our Court from the Order of the Court of Common Pleas of Bucks County, revoking probation and imposing a prison sentence on appellant.

Appellant first argues that the lower court illegally reduced his period of probation, since the order was allegedly entered without advance notice to appellant, without appellant being present at the time the order was entered, and without the presence of counsel for appellant. We find this argument to be totally without merit. When an order of probation for a period in excess of the maximum permissible term of imprisonment is imposed, the lower court may at any time correct such excessive sentence of probation by reducing it. See Commonwealth v. Ferguson, 201 Pa. Superior Ct. 649, 193 A.2d 657 (1963). Furthermore,

[ 238 Pa. Super. Page 127]

    as was stated in Ferguson, "[e]xcept in a capital case, it need not affirmatively appear in the record that the defendant was present when the order was amended, and it will be presumed that everything was rightly done." 201 Pa. Superior Ct. at 652. There is no prejudice alleged by appellant, nor is there any prejudice that could possibly have resulted from the reduction of the probation period without advance notice to appellant or without his presence or the presence of counsel. The lower court properly reduced the excessive period of probation.

Appellant next argues that the lower court was dilatory in revoking his probation after appellant was arrested for possession of marijuana, and that this tardiness requires us to order the sentence vacated and appellant discharged. It is true that when a sentence is imposed after the expiration of a probationary period, based upon a violation which occurred within the period [the situation in the case before us], the probation must be revoked and the sentence imposed within a reasonable time after the expiration of that period. Commonwealth v. Clark, 225 Pa. Superior Ct. 171, 310 A.2d 316 (1973). We do not believe, however, that an unreasonable amount of time passed in this case before the lower court revoked probation and imposed sentence. Appellant was originally placed on probation on May 18, 1973. Although the period of probation was reduced from three years to one year on July 11, 1973, the probationary period would have expired May 17, 1974. On March 23, 1974, approximately seven weeks before the expiration date, appellant was arrested for possession of marijuana. On May 16, 1974, the District Attorney of Bucks County petitioned for a hearing on the probation violation, and a hearing date was set for May 28, 1974. Appellant failed to show on the appointed day, allegedly because of the failure of the District Attorney to give proper notice of the hearing. On September 17, 1974, pursuant to ยง 780-117 of The Controlled

[ 238 Pa. Super. Page 128]

Substance, Drug, Device and Cosmetic Act,*fn1 appellant pleaded nolo contendere to the charge of possession of marijuana and was granted probation without verdict. A hearing was set for November 15, 1974 on the probation violation, but the hearing was postponed until December 5, 1974. On the latter date, a hearing was held, probation was revoked, and appellant was sentenced to three to twelve months imprisonment. In any case, the pertinent question is whether the delay in revoking probation and imposing sentence was reasonable. Commonwealth v. Duff, 201 Pa. Superior Ct. 387, 192 A.2d 258 (1963), reversed on other grounds 414 Pa. 471, 200 A.2d 773 (1964). In the case before us, action was taken by the District Attorney to have appellant's probation revoked, seven weeks after the violation (the arrest for possession of marijuana) occurred. Final action was not taken by the lower court until 6 1/2 months after the expiration date of the probationary period (8 1/2 months after the probation violation); however, it was not unreasonable for the lower court to await the disposition of the charges against appellant for possession of marijuana. See Commonwealth v. Duff, supra. We find that the amount of time which elapsed before the revocation of probation and the imposition of sentence was not unreasonable.

Appellant's final argument is that the lower court erred in permitting witnesses to testify at his probation revocation hearing concerning the marijuana offense. Appellant's rationale is that he had a right to have his record expunged of that offense, and that the lower court therefore should not have permitted testimony concerning it. The purpose of a revocation hearing "is simply to establish to the satisfaction of the judge who granted ...


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