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COMMONWEALTH PENNSYLVANIA v. LAVAUGHN SMITH (05/04/79)

decided: May 4, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
LAVAUGHN SMITH, APPELLANT



No. 696 April Term, 1977, Appeal from an Order of Court of Common Pleas of Allegheny County, dated March 15, 1977 revoking probation at No. 9229 December Term, 1970 and imposing a sentence of Six (6) Months to One (1) Year, Criminal Division.

COUNSEL

Robert L. Potter, Assistant Public Defender, Pittsburgh, for appellant.

Jacqueline Mikula Verney, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, Wieand and Hoffman, JJ. Wieand, J., files a dissenting opinion.

Author: Hoffman

[ 266 Pa. Super. Page 236]

Appellant contends that his probation violation hearing was not held as speedily as possible, as required by Pa.R.Crim.P. 1409. We agree and, therefore, reverse the lower court's order revoking probation and vacate the judgment of sentence.

On February 10, 1971, appellant pled guilty to charges of robbery and receiving stolen goods. The lower court sentenced him to five years probation, effective as of April 10, 1971. On March 26, 1976, appellant was charged in two informations with theft. On August 4 and 5, 1976, he was convicted of those charges, and, on November 12, 1976, he was sentenced to concurrent terms of 18 to 36 months imprisonment. On March 15, 1977, the lower court held a probation violation hearing and found appellant in violation of his 1971 probation due to his convictions in August 1976. The court revoked probation and sentenced appellant to six to 12 months imprisonment. This appeal followed.

Appellant contends that the March 15, 1977 probation violation hearing, held 7 1/2 months after his conviction and 11 months after his probationary period had expired, violated Pa.R.Crim.P. 1409. Rule 1409 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." The requirement of a speedy revocation hearing "is nothing more than a restatement of the doctrine developed by our court that a revocation hearing must be held with 'reasonable promptness' after probation officials know or reasonably should have known of the violation." Commonwealth v. Lipton, 238 Pa. Super. 124, 135-36, 352 A.2d 521, 526 (1975) (dissenting opinion by HOFFMAN, J.). See Commonwealth v. Waters, 252 Pa. Super. 357, 360, 381 A.2d 957, 958-959 (1977). When the alleged probation violation is

[ 266 Pa. Super. Page 237]

    the commission of another crime during the probationary period, the relevant period is the delay between the date of conviction for such crime and the date of the revocation hearing. Commonwealth v. Waters, supra, 252 Pa. Super. at 361, 381 A.2d at 959; Commonwealth v. Jones, 250 Pa. Super. 116, 378 A.2d 481 (1977); Commonwealth v. Holmes, 248 Pa. Super. 552, 375 A.2d 379 (1977); Commonwealth v. Duff, 201 Pa. Super. 387, 192 A.2d 258 (1963). In evaluating the reasonableness of such period, we use a tripartite test, focusing "upon three factors: the length of the delay; the reasons for the delay; and the prejudice to the defendant resulting from the delay." Commonwealth v. Young, 262 Pa. Super. 253, 256, 396 A.2d 741, 743 (1978). Applying these factors to the case at bar, we conclude that the probation violation hearing was not held with the reasonable promptness required by Rule 1409.

In the instant case, 7 1/2 months elapsed between appellant's theft convictions and the revocation hearing. Because we have found that a 5 month delay can be unreasonable, Commonwealth v. White, 218 Pa. Super. 188, 279 A.2d 769 (1971), a 7 1/2 month delay is obviously not "intrinsically reasonable" and, therefore, weighs in ...


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