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COMMONWEALTH PENNSYLVANIA v. KENNETH JOHNSON (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH JOHNSON, A/K/A WEBSTER JOHNSON, A/K/A WILLIAM WHITE, APPELLANT



Nos. 1733, 1734, 1735, 1886 & 1887 October Term 1976 (consolidated), Appeal from the Orders & Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on No. 1126, July 1970.

COUNSEL

Walter J. Collins, Jr., Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result.

Author: Spaeth

[ 250 Pa. Super. Page 432]

On December 16, 1970, appellant was convicted of receiving stolen goods. After receiving a pre-sentence report, the court placed appellant on probation for three years. On May 2, 1972, the court revoked probation because of appellant's failure to report to his probation officer, but then again placed appellant on probation for a new three years, with a requirement that appellant enter a drug treatment program. Appellant did not appeal this order. On April 7, 1975, after finding that appellant had committed a burglary and had failed to meet the requirements of the drug treatment program, the court revoked probation and sentenced appellant to prison for one and one half to three years. Again, appellant did not appeal. By order of June 2, 1976, Judge DOTY gave appellant permission to appeal nunc pro tunc, both from the May 2, 1972, order and from the April 7, 1975, order.

1

Appellant contends that the court did not have jurisdiction to sentence him to prison. His reasoning is this: When the court, on May 2, 1972, found that he had violated his original term of probation, it was impowered to do only one of two things: either continue his probation, or sentence him to prison. Since the court's order of May 2, 1972, did neither, it was void. Consequently, so was the second term of probation void; and since the April 7, 1975, judgment of sentence was based on the revocation of a void term of probation, so was it void.

The Sentencing Code*fn1 expressly provides for what the lower court did here. Thus Section 1371 of the Code states:

[ 250 Pa. Super. Page 433]

(b) Revocation -- The Court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.

18 Pa.C.S.A. § 1371.

The "sentencing alternatives" thus referred to are listed in Section 1321 of the Code, 18 Pa.C.S.A. § 1321, and ...


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