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COMMONWEALTH PENNSYLVANIA v. GARY LEE GILBERTHORP (01/16/81)

filed: January 16, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
GARY LEE GILBERTHORP, SR., APPELLANT



No. 244 March Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of York County, Criminal Division, No. 416 CA 1978.

COUNSEL

Robert B. Evanick, Assistant Public Defender, York, for appellant.

Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, J., dissents.

Author: Cercone

[ 283 Pa. Super. Page 404]

Appellant, Gary Lee Gilberthorp, Sr., takes this appeal from his conviction for driving under the influence of alcohol.*fn1

[ 283 Pa. Super. Page 405]

In his brief, appellant raises but one issue -- whether the lower court erred in granting the Commonwealth's application for an extension of time for the commencement of trial pursuant to Pa.R.Crim.P. 1100(c). We have reviewed the record in the instant case and we agree with appellant's position. Therefore, we reverse appellant's conviction and discharge him.

On February 27, 1978, a criminal complaint charging appellant with driving under the influence of alcohol or controlled substance was filed. A preliminary hearing was scheduled for March 8, 1978, but the Commonwealth asked that this hearing be continued for two weeks because the police officer (who apparently arrested appellant) was on vacation. However, the public defender who was handling appellant's case indicated that in two weeks he would also be unavailable for two weeks. Therefore, appellant's preliminary hearing was continued for a month, until April 3, 1978. On June 9, 1978, an information was found against appellant and appellant's trial was scheduled for the September 1978 session of criminal court.*fn2 For Rule 1100 purposes, the 180th day after the filing of the criminal complaint was to fall on August 26, 1978, and on July 12, 1978, the Commonwealth filed an application to extend the time for trial. A hearing on that application was held before the lower court on August 4, 1978.

At the Rule 1100 hearing, the lower court reviewed the docket entries regarding the preliminary hearing. Other than the facts surrounding the one month continuance of the preliminary hearing, no additional evidence was introduced by the Commonwealth. Based on the above facts, the court granted the Commonwealth's petition with the following order:

"In this case, the preliminary hearing was delayed because the police officer was on vacation for two weeks and further delayed because the public defender's office was tied up in Court for two weeks.

[ 283 Pa. Super. Page 406]

Under those circumstances, we give the Commonwealth credit for those four weeks under Rule 1100. Accordingly, we find ...


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