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decided: March 29, 1976.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1974, No. 1192, in case of Commonwealth of Pennsylvania v. Lester Opara.


David Rudovsky, with him Kairys & Rudovsky, for appellant.

Mark Sendrow, Assistant District Attorney, with him Steven H. Goldblatt, Assistant District Attorney, 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 Spaeth, J. Cercone, J., joins in this opinion. Watkins, P.j., and Jacobs, Hoffman, Price, and Van der Voort, JJ., concur in the result.

Author: Spaeth

[ 240 Pa. Super. Page 513]

This is an appeal from an order of the trial court directing appellant to pay the City of Philadelphia the sum of $750 as reimbursement for counsel fees. The order is vacated as being without authority, failing to

[ 240 Pa. Super. Page 514]

    comply with Pa.R.Crim.P. 1405(a) and 1407(c), violative of appellant's right to due process of law as guaranteed by the Fourteenth Amendment, and unnecessarily chilling the right to counsel guaranteed by the Sixth Amendment and made applicable to the states through the Fourteenth.

Appellant was arrested on January 5, 1974, and charged with driving under the influence of alcohol.*fn1 Counsel from the Philadelphia Defender Association represented appellant at a Municipal Court trial on May 28, 1974, at which time appellant was found guilty and sentenced to two years probation. At the close of trial, upon counsel's statement that appellant wished to appeal and could not afford counsel (N.T. 11), the Philadelphia Defender was again appointed to represent appellant. In the Court of Common Pleas, appellant pleaded guilty to a charge of driving while under the influence of alcohol and was sentenced to one year probation and was ordered to pay $750 to the City of Philadelphia within 60 days for the use of the Philadelphia Defender Association or to spend 30 days in County Prison for contempt.*fn2


There is no Pennsylvania statute specifically authorizing the reimbursement order of the lower court, a fact acknowledged by that court itself in its opinion filed pursuant to Pa. Superior Ct. R. 46.

[ 240 Pa. Super. Page 515]

The Public Defender Act,*fn3 which provides for the establishment of public defender offices for the representation of indigent accused, is specifically made inapplicable to the City of Philadelphia by § 3.*fn4 Therefore, its provisions for restitution*fn5 do not provide a basis for the lower court's order in this case.

The Act of January 19, 1968,*fn6 contains provision for the reimbursement by the defendant or a relative of the defendant to the county for compensation and expenses incurred and paid to court appointed counsel.*fn7 However, the Act is not applicable where a local nonprofit organization represents the defendant.*fn8 Furthermore, the court is authorized to order reimbursement only upon petition of the county that paid the compensation.*fn9

The Act of July 22, 1970*fn10 also contains provision for a reimbursement order on petition of the county, but it is applicable only in cases where the defendant is charged with murder.

Finally, Pa.R.Crim.P. 318 provides simply for the assignment of counsel; it has no provision authorizing the court to order payment of fees.

In the present case, however, the lower court found "derivative authority" for its order in § 1037 of The Vehicle Code,*fn11 under which appellant was charged. That section provides for a penalty of a fine of $100 to $500 or up to three years imprisonment, or both. According to the opinion of the lower court, "it requires no vast leap of logic to find within this same penalty provision of the

[ 240 Pa. Super. Page 516]

    code derivative authority for the court, in its discretion to divert the payment expressly provided for, up to the maximum amount, for reimbursement of defense costs. Certainly, the end result as far as the defendant is concerned is the same."

There are, however, several problems with this leap of logic.

Since the lower court's order was for $750 it was for an amount that exceeds the statutory maximum of $500. Whatever authority § 1037 might be for the lower court to divert the fine to an order of reimbursement, it could not authorize a fine (diversion) in excess of the statutory provision. To the extent that a sentence exceeds the maximum provided for by statute, it is illegal. Commonwealth ex rel. Giuffrida v. Ashe, Warden, 137 Pa. Superior Ct. 528, 10 A.2d 112 (1939); see, Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973); Commonwealth v. Washington, 228 Pa. Superior Ct. 175, 323 A.2d 380 (1974). The lower ...

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