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JAMES CAPERS v. COMMONWEALTH PENNSYLVANIA (04/30/79)

decided: April 30, 1979.

JAMES CAPERS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of James Capers v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Jeffrey Shender, Assistant Defender, John W. Packel, Assistant Defender, Chief, Appeals Division, and Benjamin Lerner, Defender, for petitioner.

Robert A. Greevy, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Mencer.

Author: Mencer

[ 42 Pa. Commw. Page 356]

James Capers (Capers) has filed a petition for review challenging the order of the Pennsylvania Board

[ 42 Pa. Commw. Page 357]

    of Probation and Parole (Board) recommitting him as a technical parole violator. On January 13, 1978, a preliminary hearing was conducted by the Board, at which time probable cause was found to charge Capers with a technical violation of his parole.

The Board's regulation 71.2(9), 37 Pa. Code § 71.2(9), provides: "In the event that the Examiner of the Board has found probable cause and is of the opinion that a Violation Hearing is warranted, he shall initiate the scheduling of a Violation Hearing."

The Board's regulation 71.2(11), 37 Pa. Code § 71.2(11), inter alia, provides: "If a Violation Hearing is scheduled, it will be scheduled as promptly as possible, but not later than 120 days of the Preliminary Hearing."

Compliance with these two regulations would have required that in the instant case a violation hearing be held*fn1 on or before May 13, 1978. In fact, such a hearing was held four days later, on May 17, 1978.

The Board does not contend that the violation hearing was held within the required 120-day period but argues that the delay resulted in part from the hearing's being postponed on two occasions. On the first occasion, the hearing was continued to accommodate the parole officer's vacation plans, and on the second occasion it was postponed because the parole officer was assaulted on the day before the date of the rescheduled hearing and was unable to resume his duties for a one-week period. ...


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