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COMMONWEALTH PENNSYLVANIA v. JEFFREY KATZ (08/19/83)

filed: August 19, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JEFFREY KATZ, APPELLANT



No. 1348 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County at No. 3823/1981.

COUNSEL

Robert A. Rovner, Feasterville, for appellant.

Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Hester, Popovich and Hoffman, JJ.

Author: Popovich

[ 318 Pa. Super. Page 284]

This is an appeal from the judgment of sentence which was imposed upon appellant, Jeffrey Katz, after he entered pleas of guilty to charges of theft by unlawful taking or disposition,*fn1 burglary,*fn2 and criminal conspiracy.*fn3 The trial court sentenced appellant to a two year term of probation which was conditioned upon payment of restitution. We reverse and remand for the reasons herein stated.

On September 11, 1981, appellant was charged with burglary, theft by unlawful taking or disposition, criminal trespass, and theft by receiving stolen property stemming from the burglary of the D & A Kawasaki dealership in Trevose, Pennsylvania. Appellant and a co-defendant entered pleas of guilty. At the end of the guilty plea hearing on January 6, 1982, appellant was placed on conditional probation for a period of two years and directed to pay the costs of prosecution. However, the court announced that it could not determine the exact amount of restitution until a hearing was held. Approximately three months later, on March 29, 1982, a joint restitution hearing was held, and the trial court ordered the imposition of restitution in the amount of $40,000.00, with each defendant to pay a pro rata share of $20,000.00. This appeal followed.

Appellant argues that the trial court erred when it (1) ordered appellant to pay a pro rata share of restitution in the amount of $20,000.00 without considering appellant's ability to pay; and (2) found appellant and his co-defendant responsible for $40,000.00 worth of merchandise which was missing from the burglary site because this factual finding

[ 318 Pa. Super. Page 285]

    was based upon insufficient evidence. We agree, in part, with appellant's contention and reverse and remand for proceedings not inconsistent with this opinion.

At the outset, we must address the issue of the timeliness of the instant appeal sua sponte since the issue of the timeliness of an appeal is a jurisdictional one and has not been raised by the parties. See Commonwealth v. Gottshalk, 276 Pa. Super. 102, 104, 419 A.2d 115, 116 (1980).

Generally, an appeal must be taken within 30 days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903(a); see Commonwealth v. Gottshalk, supra. We have further delineated the prerequisites for taking an appeal and have said that:

"the date of the entry of the order is the day the court imposes sentence on the defendant, informs him of his right to appeal within 30 days, and enters the judgment on the docket." Id.

In the instant case, an interesting scenario is presented because on January 6, 1982, the date of appellant's guilty plea hearing, the trial court "placed [appellant] on probation for a period of two years". N.T. Guilty Plea Hearing at 9. The trial court also directed appellant to pay the costs of prosecution. Id. Because the prosecution was unable to ascertain the exact amount of restitution, the court announced the following:

[THE COURT:]

"As an additional condition of probation, you are ordered to make restitution. If you can't determine the exact amount of restitution, we will have a hearing for that purpose.

MS. DEVLIN: We don't know the exact amount of restitution.

THE COURT: Well, we will have to wait, I suppose, and see what happens to the other young man involved in this case as well.

As soon as that is determined, it will be a condition of this probation that you make your pro rata ...


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