Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at No. 89 August Sessions, 1974.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Van der Voort, J., dissent.
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The appellant claims, inter alia,*fn1 that his right to a speedy trial was violated because he was not brought to trial within
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days from the date the criminal complaint was lodged against him. See Pa.R.Crim.P. 1100(a)(2).*fn2 The appellant's claim is meritorious, and we therefore reverse the judgment of sentence and order the appellant discharged.
On July 8, 1974, a criminal complaint was filed against the appellant charging him with rape.*fn3 Although the 180 day period expired on January 6, 1975, trial did not commence until early in March of 1975. On February 10, 1975, the lower court denied the appellant's petition to dismiss, see Pa.R.Crim.P. 1100(f),*fn4 on the basis that the case had been continued on several occasions because of unavailable courtroom space. No petition to extend was ever filed by the Commonwealth. The lower court was clearly in error when it denied the petition to dismiss. In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), the Pennsylvania Supreme Court held that periods of delay attributable to the judiciary may not be excluded from the computation of the mandatory period.
We therefore reverse the judgment of sentence and order the ...