No. 2412 October Term 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Div., Criminal Sect., Imposed on Indictment Nos. 251-253, Aug. Session, 1970.
Raymond E. Kumor, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement. Hoffman, J., did not participate in the consideration or decision of this case.
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Appellant contends that his probation violation hearing was not held as speedily as possible, as required by Pa.R.Crim.P., Rule 1409.
On December 7, 1971, appellant pleaded guilty to charges of aggravated robbery, carrying a concealed deadly weapon,
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and conspiracy. He was sentenced to five years probation effective as of June 24, 1970. On November 7, 1974, appellant was charged with robbery, conspiracy, firearms violations, and simple assault. On July 9, 1975, he was convicted, and on November 12, 1975, he was sentenced to five to twenty years on the robbery charge, one to two years for conspiracy, and three years probation on the other charges. A violation of probation hearing was scheduled for March 26, 1976, but the hearing was postponed until June 10, 1976. On that date a full hearing was held and appellant was found in violation of his 1971 probation. Probation was revoked, and appellant was sentenced to one to five years imprisonment.
The issue before us, therefore, is the effect to be given the eleven month delay between appellant's conviction and his probation revocation hearing. As a preliminary matter we note that appellant does not claim that this delay violated due process. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Such a claim would fail because at the time of his probation revocation hearing appellant was already serving the sentence imposed for his July 9, 1975, convictions. In Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), the Supreme Court of the United States held that there is no due process violation if the parole hearing is postponed until after the parolee has completed the sentence for the conviction that constituted the parole violation. Appellant's claim rather is based on Rule 1409 of the Pennsylvania Rules of Criminal Procedure, which provides:
Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole.
This court has stated that the period referred to in Rule 1409 "is nothing more ...