No. 580 October Term, 1979, Appeal from Judgment of Sentence imposed February 12, 1979 of the Court of Common Pleas, Criminal Division, of Lancaster County, Pennsylvania, No. 1466 of 1978.
Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.
Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files a concurring opinion.
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Defendant seeks to vacate his sentence and to file post-verdict motions nunc pro tunc. He argues that he did not voluntarily and knowingly waive his right to file post-verdict motions. We agree.
On February 12, 1979, a jury found the defendant guilty of theft and not guilty of burglary. On this same day the trial judge conducted a post-verdict colloquy as required by Pa.R.Crim.P. 1123(c). In accordance with Pa.R.Crim.P. 1123(c) the trial judge informed the defendant of his right to file post-verdict motions and of the right to the assistance of counsel in filing such motions; of the ten-day time period for filing such motions; and that only the grounds contained in such motions may be raised on appeal. Appellant's counsel then stated that he recommended that appellant not appeal. After a recess the judge fined appellant $100.00, ordered him to pay costs, and sentenced him to time served to twelve months. Within ten days of the guilty verdict the defendant, through counsel different from trial counsel (the same counsel who represents him in this appeal), filed an application to vacate the sentence and file post-verdict motions. The lower court denied this application and appellant filed the instant appeal.
After the finding of guilt, a defendant has ten days in which to file post-verdict motions. Pa.R.Crim.P. 1123(a). Although a defendant has a right to file post-verdict motions
[ 277 Pa. Super. Page 319]
within ten days after the finding of guilt, he may waive the filing of post-verdict motions within that ten-day period. Pa.R.Crim.P. 1123(b).
Pennsylvania Rule of Criminal Procedure 1123(b) provides in part:
The defendant may also within the ten (10) day period on the record voluntarily and understandingly waive the filing of post-verdict motions. Prior to the acceptance of such waiver the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that waiving of post-verdict motions shall preclude raising on appeal any issues which might have been raised in such motions.
It appears that, if the defendant makes a voluntary and understanding waiver in compliance with Pa.R.Crim.P. 1123(b) within this ten-day period, he may not as of right retract this waiver even within this ten-day period. This aspect of the rule is a departure from prior court decisions which allowed a voluntary and understanding waiver to be retracted within the time for filing post-verdict ...