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decided: October 25, 1978.


No. 369 April Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Clearfield County, at No. 76-784-CRA


Earle D. Lees, Jr., Assistant District Attorney, Clearfield, for Commonwealth, appellant.

James A. Naddeo, and Belin, Belin & Naddeo, Clearfield, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Watkins, former President Judge and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 259 Pa. Super. Page 457]

Appellee Jack A. Rabik was involved in a single car accident on July 23, 1976, in Bradford Township, as a result

[ 259 Pa. Super. Page 458]

    of which he was issued a citation for reckless driving and a complaint was filed against him for driving while under the influence. Appellee pleaded guilty to the summary offense of reckless driving, paying the fine and costs. On November 3, 1976, appellee waived arraignment on the charge of driving while under the influence, and entered a plea of not guilty. On November 5, 1976, appellee filed a motion to quash, arguing that the offense arose from the same transaction or series of events that resulted in his reckless driving conviction.*fn1 The lower court held a hearing on December 10, 1976, and issued an order granting appellee's motion. The Commonwealth brought this appeal from the order granting the motion to quash.

We are presented in this case with a very narrow procedural issue: the Commonwealth argues that appellee failed to enter a special plea (autrefois convict) relating to double jeopardy, and that the lower court should not have permitted appellee to raise the defense of former conviction by a pre-trial motion to quash.*fn2 Dictum in Commonwealth v. Splain, 242 Pa. Super. 503, 364 A.2d 384 (1976), supports the Commonwealth's argument,*fn3 but the decision in Splain

[ 259 Pa. Super. Page 459]

    actually turned upon the fact that the defendant had waited until the Commonwealth presented its case before raising the former jeopardy issue. As was noted in Splain, a defendant will not be permitted to sit back and put the Commonwealth to the time and expense of presenting its evidence. If a defendant does not act in a timely manner, he may waive the right to raise a former jeopardy (ยง 110 compulsory joinder) issue. Appellee in the case before us did act promptly in bringing the earlier conviction to the attention of the lower court before the case came to trial and before any prejudice resulted to the Commonwealth.

The correct procedure to be followed by a defendant in raising a former jeopardy argument was stated by our court in Commonwealth v. Davis, 247 Pa. Super. 450, 452, n. 3, 372 A.2d 912, 913 (1977): "The proper procedure for raising a bar to prosecution, such as former acquittal, is a written pre-trial application pursuant to Pa.R.Crim.P. 304." Under the rules of criminal procedure, appellee Rabik could have pleaded guilty, not guilty, or nolo contendere. Rule 319(a). No mention is made in the rules of "special pleas" of any kind. Appellee entered a plea of not guilty to the second charge, and proceeded, pursuant to Rule 304 (now Rule 306), to file a pre-trial motion to quash, raising the "former jeopardy" issue. We hold that appellee properly brought the former conviction to the attention of the lower court.

Order affirmed.

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