No. 1157 October Term, 1978, Appeal from the Judgment of Sentence, resulting from violation of probation, of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, imposed on Bill of Indictment No. 1652, September Term, 1972.
Norman Ackerman, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 286 Pa. Super. Page 28]
This is an appeal from a probation hearing in which the appellant's probation was revoked.
On May 31, 1973, the appellant was convicted of burglary and aggravated robbery and was sentenced to five years probation. On October 27, 1977, the appellant appeared before the court below for a probation hearing and was found in violation of his probation. The court below revoked his probation and resentenced him to a new five year probation provided that he be admitted to the Horizon House Drug Treatment program as an in-patient. In early November, 1977, the appellant left, returned to, and again left Horizon House in violation of his probation. On February 1, 1978, the court below held another probation hearing. At the appellant's request, that hearing was continued until February 14, 1978, when he was again found in violation of his probation. His probation was revoked and he was resentenced to spend eleven and one-half to twenty-three months in the House of Corrections Therapeutic Community.
The issues before this Court are (1) whether the appellant waived his right to a speedy probation revocation hearing under Pa.R.Crim.P. 1409, and (2) whether this case should be remanded to determine if the appellant was given written notice of the probation hearing.
[ 286 Pa. Super. Page 29]
I. WHETHER THE APPELLANT WAIVED HIS RIGHT TO A SPEEDY PROBATION REVOCATION HEARING UNDER PA.R.CRIM.P. 1409?
On November 7, 1977, the probation authorities learned of the appellant's leaving the Horizon House. On February 1, 1978, the court below heard this matter in a probation hearing.
The appellant contends that the delay of eighty-six days between the date that the probation authorities learned of the violation of probation and the date of the hearing was in violation of Pa.R.Crim.P. 1409, which reads:
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 ...