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COMMONWEALTH PENNSYLVANIA v. HOWARD N. HUNTER (11/25/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 25, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
HOWARD N. HUNTER, APPELLANT

No. 340 Philadelphia 1982, No. 1710 Philadelphia 1982, Appeal from the Judgment of Sentence, October 9, 1981, Court of Common Pleas, Chester County, Criminal No. 057276 of 1976.

COUNSEL

Bruce Alan Herald, West Chester, for appellant.

James R. Freeman, District Attorney and F. Ned Hand, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Cirillo, Johnson and Cercone, JJ.

Author: Johnson

[ 321 Pa. Super. Page 334]

This is a consolidated appeal from judgment of sentence imposed following the revocation of a term of probation being served by appellant, Howard Hunter. We now affirm

[ 321 Pa. Super. Page 335]

    the appeal taken at 340 Philadelphia 1982, and dismiss the appeal taken at 1710 Philadelphia, 1982.*fn1

On September 29, 1976, appellant received a ten (10) year term of probation. Following the imposition of this probation, appellant was subsequently convicted of a second unrelated offense. On May 15, 1978, his probation was revoked and he was resentenced to serve a term of five (5) to ten (10) years imprisonment. However, on June 13, 1978, the court vacated judgment of sentence imposed on May 15th. On November 20, 1978, appellant's original probation was reinstated by the sentencing court. In October of 1981 appellant was convicted of a third unrelated offense. On the 9th of October, appellant's probation was revoked a second time and a sentence of five (5) to ten (10) years imprisonment was imposed. This appeal followed.

The sole issue presented on appeal is whether the imposition of the five (5) to ten (10) year sentence of confinement on October 9th, following the revocation of appellant's probation, violated the Double Jeopardy Clause. Citing Commonwealth v. Johnson, 269 Pa. Super. 122, 409 A.2d 94 (1979), appellant argues that the "[r]eimposition of five (5) to ten (10) year sentence after suspending that sentence*fn2 and imposing the lesser sentence of probation

[ 321 Pa. Super. Page 336]

    constituted double jeopardy."*fn3 It is apparently appellant's position that the imposition of probation prevents the sentencing court from reimposing a sentence of confinement upon revocation of the probation.

It is axiomatic that the Double Jeopardy Clause of the Fifth Amendment of the Constitution*fn4 protects against the imposition of multiple punishments for the same offense in the form of an increase in the sentence. See Commonwealth v. Silverman, 422 Pa. 211, 275 A.2d 308 (1971). For purposes of double jeopardy analysis, probation is a punishment, Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967), and a judgment of sentence, Commonwealth v. Nance, 290 Pa. Super. 312, 320 n. 7, 434 A.2d 769, 773 n. 7 (1981). While probation is a final sentence that will provoke double jeopardy consequences, the very nature of probation is that it is a conditional sentence subject to revocation and the imposition of a further sentence upon breach of any of the conditions placed upon the grant or maintenance of probation. Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978). The resentencing of an offender upon revocation of probation does not constitute a second punishment for the offense giving rise to the probation, but is an integral element of the original conditional sentence of probation. See Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982); Commonwealth v. Colding, supra; Commonwealth v. Vivian, supra. Our Supreme Court described the effect of probation for double jeopardy purposes as follows:

[w]here a defendant's original sentence consists solely of a term of probation, this court has held in Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978), that revocation of probation and imposition of a term of total confinement is not violative of the double jeopardy clause, since the defendant was given one conditional sentence

[ 321 Pa. Super. Page 337]

    appellant's position, its holding was rejected by our Supreme Court in Commonwealth v. Pierce, supra, and we have ceased to follow Johnson. See also Commonwealth v. Roach, 307 Pa. Super. 506, 453 A.2d 1001 (1982).

Accordingly, we affirm judgment of sentence dated October 9, 1981, from which appeal was taken at 340 Philadelphia, 1982. The appeal at 1710 Philadelphia, 1982 is dismissed.*fn7


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