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COMMONWEALTH PENNSYLVANIA v. JEFFREY GAUS (01/07/82)

submitted: January 7, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JEFFREY GAUS, APPELLANT



No. 1197 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County at No. 638 81.

COUNSEL

Douglas M. Johnson, Public Defender, Norristown, for appellant.

Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, Cavanaugh and Montemuro, JJ.

Author: Per Curiam

[ 300 Pa. Super. Page 374]

This is an appeal from an order of the Court of Common Pleas of Montgomery County revoking appellant's term of probation and sentencing the appellant to a minimum term of imprisonment of six months and a maximum term of twelve months at the Montgomery County Prison.*fn1

On January 19, 1976, pursuant to a plea agreement, appellant pleaded guilty to Criminal Mischief*fn2 and Possession of a Small Amount of Marijuana only for Personal use.*fn3 Appellant was placed on probation for a period of two years with the Pennsylvania Board of Probation and Parole and ordered to pay the costs of prosecution and make restitution within sixty days. On January 30, 1976, a Gagnon I hearing was held and probable cause was established to warrant the filing of a Petition to Revoke appellant's probation. On February 13, 1976, the lower court continued the Gagnon II hearing pending the disposition of the then present charge of burglary. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Thereafter, the appellant absconded until again apprehended by the Pottstown Police on January 9, 1981 on other charges. On March 17, 1981 a Notice of Probation Violation was received by the appellant. A Gagnon I hearing was held on March 26, 1981 and probable cause to revoke the appellant's probation was established. A Gagnon II hearing was held on April 10, 1981 and appellant was found to have violated the terms of his probation of January 9, 1976. Appellant was sentenced to a term of imprisonment of not less than six months nor more than twenty-three months. Appellant filed a Motion for

[ 300 Pa. Super. Page 375]

Reconsideration and the lower court modified the sentence to not less than six months nor more than twelve months imprisonment*fn4 and this appeal followed.

On appeal, appellant raises two arguments: (1) the sentence of six to twelve months was illegal since the court lacked jurisdiction because defendant's original probationary period expired on January 19, 1978; and (2) the sentence imposed was unduly harsh and excessive under the circumstances. Though the court properly asserted jurisdiction, we must remand this case for the following reasons.

Appellant contends that the court below lacked jurisdiction to sentence the appellant because appellant received notice of his probation violation more than three years after his probation period expired in violation of his right to a speedy revocation hearing. Pa.R.Crim.P. 1409;*fn5 Commonwealth v. Ruff, 272 Pa. Super. 50, 414 A.2d 663 (1979). While appellant does not dispute that probation may be revoked within a reasonable time after the expiration of a probationary period for a violation which occurred within the probation period, Commonwealth v. Ballard, 292 Pa. Super. 129, 436 A.2d 1039 (1981), appellant argues that the three year delay in the present case was unreasonable and in violation of his right to a speedy probation violation hearing.

In determining whether the hearing has indeed been held with reasonable promptness, the length of time between the conviction and the hearing is not the sole determinative ...


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