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COMMONWEALTH PENNSYLVANIA v. DANIEL J. KANE (04/29/83)

filed: April 29, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL J. KANE, APPELLANT



No. 2247 Philadelphia 1980, APPEAL FROM THE JUDGMENT OF SENTENCE OF THE COURT OF COMMON PLEAS, CRIMINAL, OF BUCKS COUNTY AT NO. 1307 OF 1976.

COUNSEL

Stanley M. Shingles, Philadelphia, for appellant.

Stephen B. Harris, Assistant District Attorney, Doylestown, submitted a brief on behalf of Commonwealth, appellee.

Spaeth, Wickersham and Cirillo, JJ. Spaeth, J., files a dissenting opinion.

Author: Cirillo

[ 315 Pa. Super. Page 215]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Bucks County imposed after revocation of probation.

[ 315 Pa. Super. Page 216]

On July 14, 1976 the appellant, Daniel J. Kane, appeared before the Honorable William Hart Rufe, III and pleaded guilty to charges of possession of a controlled substance (methamphetamine),*fn1 simple assault*fn2 and resisting arrest.*fn3 He was placed on probation for one year.

On June 9, 1977, while still on probation, appellant was arrested by federal authorities on charges of conspiracy to manufacture, manufacture, and possession of a controlled substance. A probation violation hearing was held on July 11, 1977. The appellant was charged with four violations: 1) failure to advise the probation department of his change of address; 2) failure to report during the months of May and June; 3) failure to report his employment status; and 4) failure to report his June 9th arrest by federal authorities. The lower court found that the first three charges had been proved and extended the appellant's probation two years. The court deferred any finding on the fourth charge until the federal prosecution of the appellant had been completed.

In October, 1977 the appellant became a fugitive. Two years later, on November 25, 1979, he was apprehended by federal authorities. On January 16, 1980 he pleaded guilty to the federal charges and on March 3, 1980 he was sentenced to four years imprisonment to be followed by two years probation. In September, 1980 a probation violation hearing was held. On the basis of his federal conviction, the lower court revoked the appellant's probation and sentenced him to a term of imprisonment of not less than 1 year nor more than 5 years, to be served concurrently with his federal sentence. This appeal followed.

Initially, the appellant contends on appeal that he was denied his right to a speedy probation revocation hearing.

[ 315 Pa. Super. Page 217]

This claim is based on a delay of over eight months in the commencement of the hearing.*fn4 The Pennsylvania Rules of Criminal Procedure mandate the following:

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 record that the defendant violated a condition of probation or parole. In the event that probation is ...


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