decided: February 16, 1979.
COMMONWEALTH OF PENNSYLVANIA
CLARENCE ROBINSON, APPELLANT
No. 1151 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, imposed on Bill of Indictment Nos. 550 and 553, February Session, 1976.
Harry S. Tischler, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 263 Pa. Super. Page 331]
Appellant was tried and convicted of robbery. After Post-Trial Motions were denied, appellant was sentenced to a term of 7-15 years in jail. This appeal follows.
Appellant contends on this appeal that the lower court erred in refusing to dismiss the indictment against him pursuant to Pa.R.Cr.P. § 1100(f). We agree and therefore reverse the judgment of sentence and discharge the appellant.
Appellant was arrested January 14, 1976. Therefore, pursuant to Rule 1100, the Commonwealth had until July 12, 1976 to bring appellant to trial, in absence of any extensions of time.
On January 21, 1976, the preliminary hearing was continued on request of appellant's co-defendant's counsel.
On March 24, 1976, trial was continued at the request of appellant's co-defendant's counsel.
On April 17, 1976, trial was continued because appellant's co-defendant was ill.
[ 263 Pa. Super. Page 332]
On June 24, 1976, trial was continued because it was not reached at the end of that list.
On July 19, 1976, appellant petitioned for dismissal under Rule 1100. This motion was denied on July 22, 1976, and the court without petition by the District Attorney, extended the time for trial nunc pro tunc.
Clearly, none of the delays was chargeable to the appellant. The first three postponements were requested by the appellant's co-defendant. We see nothing of record to indicate that appellant or his counsel ever agreed to an approval of the delay caused by his co-defendant. Thus these delays could not be charged to appellant and hence would not be excluded for purposes of the "180 days." Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976).
The last delay was caused when the case was not reached at the end of the June trial list. Apparently the docket was too crowded. Seemingly this presented "just cause" for an extension of time. Commonwealth v. Lewis, 247 Pa. Super. 46, 371 A.2d 1318 (1977). However, the Commonwealth failed to apply for an extension of time in which to commence trial prior to the expiration of the final day mandated by this rule (indeed the Commonwealth never filed for an extension of time). See Commonwealth v. Ellison, 249 Pa. Super. 339, 378 A.2d 325 (1977).
It is to be regretted that the facts of this case leave us no recourse; we must discharge the appellant, since he was not tried within the mandates of Rule 1100, and since an extension was not properly granted.*fn1
Judgment of sentence reversed; appellant is discharged.