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COMMONWEALTH PENNSYLVANIA v. DARL LOIS CAMPBELL (01/04/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 4, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DARL LOIS CAMPBELL, APPELLANT

No. 2701, October Term, 1978, Appeal from Judgment of Sentence of Court of Common Pleas of Lancaster County, Criminal, No. 1825 of 1977

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Hester, Hoffman and Catania, JJ.*fn* Hester, J., files a dissenting statement.

Author: Hoffman

[ 273 Pa. Super. Page 408]

Appellant contends that because the Commonwealth's bill of information charging her with retail theft under section 3929(a)(1) of the Crimes Code*fn1 did not mention a prior offense, the lower court should have sentenced her as a first offender.*fn2 We agree and, accordingly, vacate the judgment of sentence and remand the case for resentencing.

On November 11, 1977, the District Attorney of Lancaster County filed a bill of information, alleging that appellant

[ 273 Pa. Super. Page 409]

    had committed retail theft under section 3929(a)(1) of the Crimes Code by taking merchandise valued at $1.59 from a Lancaster, Pennsylvania, store. The information did not state that appellant had committed any prior offenses. After the jury found appellant guilty, the lower court denied post-trial motions. At the sentencing hearing, the Commonwealth presented evidence of appellant's prior shoplifting offenses. After the lower court sentenced appellant to probation for a period of one year,*fn3 appellant took this appeal.

It is well-settled that a court may not impose an enlarged sentence under a recidivist statute if the indictment or bill of information does not contain allegations of prior convictions. See, e. g., Commonwealth v. Moses, 441 Pa. 145, 146, 271 A.2d 339, 340 (1970) (Liquor Code); Commonwealth v. Herstine, 264 Pa. Super. 414, 416, 399 A.2d 1118, 1119 (1978) (retail theft). Section 3929(b)(1)(I) of the Crimes Code provides: "Retail theft constitutes A: (I) Summary offense when the offense is a first offense and the value of the merchandise is less than $150." 18 Pa.C.S.A. ยง 3929(b)(1)(I). Because the bill of information in this case did not indicate that appellant had committed any prior offenses, appellant's sentence could not lawfully exceed that which is allowable for a summary offense.

Judgment of sentence vacated and case remanded for resentencing in accordance with this opinion.

HESTER, Judge, dissenting:


*fn* President Judge Francis J. Catania of the Court of Common Pleas of Delaware County, Pennsylvania, is sitting by designation.


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