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COMMONWEALTH PENNSYLVANIA v. ERNEST COLDING (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ERNEST COLDING, APPELLANT



No. 316 January Term, 1976, Appeal from the Order of the Superior Court at October Term, 1974, No. 1175, Affirming the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at October Sessions, 1972, No. 1938.

COUNSEL

Defender Assn. of Phila., Benjamin Lerner, Defender, John W. Packel, Asst. Public Defender, Chief, Appeals Div., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Stephen Seeling, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., concurs in the result. Manderino, J., filed a dissenting opinion in which Roberts, J., joins. Packel, former J., did not participate in the consideration or decision of this case.

Author: Pomeroy

[ 482 Pa. Page 113]

OPINION

On December 12, 1972, appellant Ernest Colding entered a plea of guilty to a charge of aggravated robbery before the Honorable Calvin C. Wilson of the Court of Common Pleas of Philadelphia County and was sentenced to

[ 482 Pa. Page 114]

    imprisonment for a term of "time in to four years"*fn1 and to make restitution to the victim. On December 15, 1972, a hearing was held to reconsider sentence. Judge Wilson thereafter "vacated" the sentence of December 12 and placed appellant on four years probation with the condition of restitution.*fn2 On May 7, 1974, Colding pleaded guilty to various criminal charges and, as a result, a hearing was held on May 10, 1974 to determine whether the conditions of probation had been violated and whether probation should be revoked.*fn3 At that hearing, the trial court found a violation and thereafter revoked probation. A sentence of one and one-half to three years was then imposed.

Appellant appealed the new sentence to the Superior Court which (two judges dissenting) affirmed the judgment of sentence. Commonwealth v. Colding, 237 Pa. Super. 612, 352 A.2d 554 (1975). We granted Colding's petition for allowance of appeal*fn4 and now affirm.

[ 482 Pa. Page 115]

The sole issue raised here, as below, is whether the sentence of one and one-half to three years imposed following the revocation of probation was violative of the double jeopardy provision of the Fifth Amendment of the Constitution of the United States.*fn5 That clause protects against the imposition of multiple punishments for a single offense. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Commonwealth v. Foster, 229 Pa. Super. 269, 324 A.2d 538 (1974). Appellant does not argue that imposition of a prison sentence following a grant of probation constitutes multiple punishment, for we have previously held that probation is conditional in nature, subject to revocation and the imposition of a term of imprisonment upon a breach of its conditions. Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967). Rather, it is Colding's contention that the original sentence of December 12, 1972, although "vacated," is the bench mark against which any later sentence must be measured. So viewing the matter, the sentence imposed following the revocation of probation constituted a second, harsher punishment.*fn6 We disagree.

The starting point of our analysis must be the conditions under which the courts of this state may impose probation upon criminal offenders. Generally, such authority is found in two statutory provisions. The Act of June 19, 1911, P.L. 1055, § 1, as amended, 19 P.S. § 1051, provides ...


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