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COMMONWEALTH PENNSYLVANIA v. FRED BYTHEWAY (08/28/81)

filed: August 28, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
FRED BYTHEWAY



No. 1318 October Term, 1979, Appeal from the Orders in the Court of Common Pleas of Delaware County, Criminal Division, at No. 5840 of 1977 and Nos. 148 and 782 of 1978.

COUNSEL

Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellant.

D. Michael Emuryan, Milmont Park, for appellee.

Price, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting opinion.

Author: Price

[ 290 Pa. Super. Page 150]

This appeal is from consolidated orders of the Court of Common Pleas of Delaware County denying the Commonwealth's petition to extend the time for commencement of trial and dismissing the charges against appellee, Fred Bytheway. The Commonwealth contends it was entitled to an extension of time for commencement of appellee's trial on the basis of judicial delay. See Pa.R.Crim.P. 1100(c). We disagree and thus affirm the orders entered below.

The relevant facts are these. A criminal complaint charging appellee with burglary was filed on November 23, 1977. Appellee was approved for Accelerated Rehabilitative Disposition (ARD) on January 5, 1978 and, on February 14, 1978, he was placed in a two year probationary program. Shortly thereafter, on February 25, 1978, appellee was arrested and charged with two additional burglaries. The Commonwealth consequently moved for appellee's removal from the ARD program. This motion was granted on May 5, 1978 and on May 31, 1978, appellee pleaded guilty to all three burglaries. The trial court accepted the guilty plea and, on July 19, 1978, sentenced appellee to a term of imprisonment. No direct appeal was taken from the judgment of sentence. On September 26, 1978, appellee filed a Post Conviction Hearing Act (PCHA)*fn1 petition alleging trial counsel's ineffectiveness in failing to require a complete guilty plea

[ 290 Pa. Super. Page 151]

    colloquy. Following a hearing, the trial court permitted appellee to withdraw his guilty plea on January 15, 1978. The case was first listed for trial during the week beginning March 5, 1979. It was not reached that week, however, and was, therefore, continued by the trial court until April 2, 1979. The case was once again not reached and the trial court again continued the matter until April 30, 1979. A third continuance, until May 29, 1979, resulted when the case was not called for trial during the week of April 30, 1979. Pursuant to section (c) of Pa.R.Crim.P. 1100, the Commonwealth filed a petition on May 9, 1979, seeking an extension of time to commence appellee's trial.*fn2 A hearing on the petition to extend was held on May 18, 1979 and, on May 23, the trial court refused to grant the extension. On May 25, appellee filed a motion to dismiss the charges pursuant to Rule 1100(f), which motion was granted on May 29, 1979.*fn3 This appeal followed.

The first issue presented for our determination is whether the Commonwealth's petition to extend the time for commencement of appellee's trial was timely. A petition for

[ 290 Pa. Super. Page 152]

    an extension of time under Rule 1100(c) must be filed prior to the expiration of the mandatory period (1) prescribed by the Rule, or (2) set forth in a previous order granting an extension of time. Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979); Commonwealth v. Smith, 262 Pa. Super. 258, 396 A.2d 744 (1978); Commonwealth v. Bass, 260 Pa. Super. 62, 393 A.2d 1012 (1978). Failure to file a timely extension petition precludes the granting of an extension because the Commonwealth is not permitted to file a petition nunc pro tunc. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Smith, 262 Pa. Super. 258, 396 A.2d 744.

Instantly, the Commonwealth contends its extension petition was timely since it was filed within 120 days of the January 15, 1979 order permitting appellee to withdraw his guilty plea. Positing that an order permitting withdrawal of a guilty plea after sentence has been imposed is analogous to an order granting a new trial, the Commonwealth argues that, under Rule ...


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