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COMMONWEALTH PENNSYLVANIA v. JAMES R. MARTIN (06/28/76)

decided: June 28, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES R. MARTIN, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Lackawanna County Criminal Division, No. 1046 of 1973. No. 471 October Term 1975.

COUNSEL

John J. Dunn, Sr., Defender, Robert T. Gownley, Jr., Asst. Public Defender, Scranton, for appellant.

Paul R. Mazzoni, Dist. Atty., Scranton, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Spaeth

[ 241 Pa. Super. Page 223]

This is an appeal from an order revoking probation and imposing sentence.

On March 25, 1974, appellant pleaded guilty to criminal attempt (theft). On August 30 he was placed on probation for three years and ordered to pay costs and a fine of $100 to the use of Lackawanna County. On October 23 he was served with the following document:

C.A. 1046 of 1973, Commonwealth v. James R. Martin. Now, October 23, 1974, on motion of the Probation Officer, a capias is awarded for James R. Martin, the above Probationer, for violation of probation. By the Court, Walsh, J.

On November 8 a probation revocation hearing was held. At the start of the hearing counsel for appellant objected

[ 241 Pa. Super. Page 224]

    to the lack of notice, stating, "I have no copy of any violation of parole [ sic ] and no specifications, no notice, no charge, nothing which the defendant can defend." The hearing continued nevertheless. After finding that appellant "did not remain sober and he did not keep the company he should keep and that he violated laws of the Commonwealth of Pennsylvania and that he did not keep good hours," the lower court revoked appellant's probation and sentenced him to 1 1/2 to 3 years in prison. This appeal followed; the order of certiorari issued on December 9.

While the appeal was pending, the lower court, on February 10, 1975, ordered that "a new Parole Revocation Hearing be held on February 14, 1975." The order recited that it was entered "on the representation contained in the aforegoing stipulation of counsel for the Commonwealth and the defendant." Paragraphs 3 and 4 of the stipulation stated:

3. Defendant's counsel objected at the Parole Hearing [of November 8, 1974] that he did not have a written specification of the Rules of Probation which he was accused of violating. A subsequent check by the District Attorney's Office revealed that, ...


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