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COMMONWEALTH PENNSYLVANIA v. RICHARD LEE BARNETT (09/21/81)

SUPERIOR COURT OF PENNSYLVANIA


submitted: September 21, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
RICHARD LEE BARNETT, APPELLANT

No. 217 March Term, 1979, Appeal from the Order entered September 6, 1979 of the Court of Common Pleas of Fulton County, Criminal Division, at No. 68-1975

COUNSEL

Richard L. Shoap, Chambersburg, for appellant.

Gary Deane Wilt, District Attorney, McConnellsburg, for Commonwealth, appellee.

Brosky, McEwen and Beck, JJ.

Author: Brosky

[ 293 Pa. Super. Page 421]

In 1975, appellant was convicted of several crimes including one count of resisting arrest. In 1976, he was given a suspended sentence for two years and placed on probation on the resisting arrest charge. In June, 1979, appellant was found to be in violation of the terms of his probation on the

[ 293 Pa. Super. Page 422]

    basis of a guilty plea to a robbery charge which he entered during the probationary period. He was sentenced in August, 1979 for the probation violation. He then petitioned the lower court for vacation of that sentence; the petition was denied on September 6, 1979. Appellant now seeks review of that September 6 order. We quash the appeal.

Appellant termed the pleading in which he requested vacation of sentence a "Petition to Vacate." It was effectively a motion to modify sentence. The relief sought by appellant is properly requested by means of such a motion. See Pa. Rule Crim.Proc. 1410 and Comment. See also, Commonwealth v. Dorman, 272 Pa. Super. 149, 414 A.2d 713 (1979), footnote two, in which this court applied Rule 1410 to a motion to vacate sentence.

Appellant commenced this action by filing a notice of appeal on October 5, 1979. If the appeal were properly taken from the denial of his motion, it would be timely filed. However, the Comment to Pa. Rule Crim.Proc. 1410 makes clear that appellant's appeal in which he seeks review of the merits of his conviction is properly from the judgment of sentence, not the denial of the motion. The Comment states in part,

The present appeal was begun more than thirty days after the judgment of sentence was entered. The denial of appellant's petition does not extend the 30 day period. See Commonwealth v. Thompson, 277 Pa. Super. 267, 419 A.2d 765 (1980).

Appeal quashed.

19810921

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