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COMMONWEALTH PENNSYLVANIA v. CARL HONEYBLUE (12/29/78)

decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
CARL HONEYBLUE, APPELLANT



No. 1495 October Term, 1977, Appeal from the Judgment of Sentence of Smillie,/ J., dated April 15, 1977, in the Court of Common Pleas, Criminal Division, of Montgomery County, Pennsylvania, at No. 558 April Term, 1972.

COUNSEL

George B. Ditter, Assistant Public Defender, Norristown, for appellant.

Eric J. Cox, Assistant District Attorney, Norristown, for Commonwealth, appellee.

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

Author: Jacobs

[ 262 Pa. Super. Page 138]

The unfortunate circumstances of this appeal raise the familiar issue of notice of alleged violations of probation preceding revocation thereof. Once again we are compelled to vacate the order of the court below revoking probation and imposing sentence, and to remand for further proceedings.

Appellant was found guilty of burglary in the Common Pleas Court of Montgomery County and placed on five years probation on September 6, 1972. On March 21, 1976, appellant was arrested in Philadelphia on charges of robbery,

[ 262 Pa. Super. Page 139]

    aggravated assault, and simple assault, and a detainer was lodged against him for possible probation violation. Following a preliminary hearing on these charges, appellant was held for indictment and trial in Common Pleas Court of Philadelphia. On June 11, 1976, a probation revocation hearing was held in the court below, and following a finding of probation violation, appellant was sentenced to five to fifteen years imprisonment. On appeal, we vacated the order revoking probation and imposing sentence, and remanded for a new probation revocation hearing due to the absence of written notice of the alleged violations. Commonwealth v. Honeyblue, 246 Pa. Super. 442, 371 A.2d 919 (1977). On remand, written notice was finally delivered to appellant on April 14, 1977, the day before the hearing, at 5:45 p. m.

Appellant now contends that this short notice deprived him of due process by hampering his ability to cross examine Commonwealth witnesses and to present an adequate defense. We are constrained to agree.

The reason for written notice in advance of the revocation proceeding is not difficult to discern: to apprise the individual of the alleged violations so that a defense can be prepared. In this light, it becomes clear that the right to advance written notice becomes meaningless if given solely to comply with technical requirements, with no consideration of the time involved.

We recently held in Commonwealth v. Williams, 254 Pa. Super. 202, 385 A.2d 979 (1978), that written notice of alleged probation violations delivered ten minutes before the revocation hearing was insufficient where the hearing had been continued to provide notice, and appellant objected to the absence of notice at the hearing. That result is persuasive in this case. Here, the court below stated on the record that following our prior remand order, Judge SMILLIE contacted the State Board of Parole and ...


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