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COMMONWEALTH PENNSYLVANIA v. KEITH LAMAR YODER (10/06/77)

SUPERIOR COURT OF PENNSYLVANIA


decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KEITH LAMAR YODER

No. 1539 October Term, 1976, Appeal from the Amended Order of the Court of Common Pleas of Northumberland County at No. CR-75-147, Criminal Sec.

COUNSEL

James J. Rosini, District Attorney, Shamokin, for Commonwealth, appellant.

Stephen Cohen, Sunbury, for appellee.

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

Author: Jacobs

[ 249 Pa. Super. Page 390]

This is an appeal by the Commonwealth seeking to vacate an order by the Court of Common Pleas of Northumberland County amending the sentence imposed on Keith Lamar

[ 249 Pa. Super. Page 391]

Yoder, appellee herein. We hold that the lower court erred and, accordingly, vacate the order of the lower court.

On September 17, 1975, appellee Yoder entered a plea of guilty to the charge of burglary. He was sentenced to undergo imprisonment in the Northumberland County Prison for a period not less than two (2) months and not more than twenty-four (24) months, said sentence to run consecutive to the term then being served by Yoder in Schuylkill County. The appellee was released from Schuylkill County prison on April 8, 1976, and was immediately transferred to Northumberland County. However, on the same day the lower court, upon its own initiative, and without the Commonwealth or appellee present, and without notice, hearing or argument, entered an order reducing the sentence of the appellee to a term of one (1) to twenty-three (23) months. It is from that order that the Commonwealth has appealed.*fn1

Pursuant to 12 P.S. ยง 1032*fn2 the lower court, after imposing a legal sentence, is empowered to alter such sentence only during the term of court in which the sentence was imposed, or within thirty (30) days if the term of court expires prior to the running of the thirty day period. Commonwealth v. Horsman, 239 Pa. Super. 534, 361 A.2d 433

[ 249 Pa. Super. Page 392]

(1976); Commonwealth v. Bigley, 231 Pa. Super. 492, 331 A.2d 802 (1974); Commonwealth v. Scheetz, 217 Pa. Super. 76, 268 A.2d 193 (1970). In the case at bar, not only had the prescribed period expired, but the amendment was made without advance notice to all the parties in interest. Such notice is expressly required by Section 1032. The April 8, 1976, order of the lower court is, therefore, void.

The order of the lower court amending the appellee's sentence is vacated and the judgment of sentence imposed on September 17, 1975, is reinstated.


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