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filed: March 9, 1984.


No. 536 Pittsburgh, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Indiana County, Nos. 208, 133 & 134, 1981


Robert W. Lambert, Indiana, for appellant.

Gregory Allen Olson, District Attorney, Indiana, for Commonwealth, appellee.

Rowley, Wieand and Hester, JJ.

Author: Wieand

[ 326 Pa. Super. Page 332]

Where a sentence of imprisonment is suspended indefinitely and it is clear that the sentencing court did not intend to place the defendant on probation, may the court subsequently "vacate" its earlier order, revoke the suspended sentence, and reimpose a sentence of imprisonment? We hold that it cannot. Therefore, we reverse the judgments of sentence which required appellant to serve terms of imprisonment.

On June 28, 1981, Bryon Bruce Ferrier entered pleas of guilty to forgery, a felony of the second degree, and to two felony counts of retail theft. He was sentenced on July 27, 1981 to pay fines totaling $300.00, together with the costs of prosecution, and to undergo imprisonment for consecutive terms of five to ten and three and one-half to seven years. The terms of imprisonment were suspended, however, and Ferrier was placed on probation for consecutive periods totaling fifteen and one-half years.*fn1

On August 5, 1981, the trial court caused amended sentencing orders to be entered. These orders imposed the same sentences as had previously been imposed, but eliminated

[ 326 Pa. Super. Page 333]

    any reference to probation. The sentences of imprisonment were suspended upon the sole conditions that Ferrier "comply with an agreement to maintain his employment and to obey all the laws of the Commonwealth of Pennsylvania."*fn2

[ 326 Pa. Super. Page 335]

Ferrier was subsequently convicted of robbery in Westmoreland County. After a hearing on April 8, 1983, the Court of Common Pleas of Indiana County revoked the suspended sentence which it had imposed on August 5, 1981 and ordered Ferrier to serve consecutive prison terms of five to ten and three and one-half to seven years.*fn3 No

[ 326 Pa. Super. Page 336]

    reasons for the sentences were given. Ferrier's petition to modify these sentences was denied, and this direct appeal followed.

At the time when appellant was convicted of robbery in Westmoreland County, he was not on probation in Indiana County. By its orders suspending sentences on August 5, 1981, the Court in Indiana County had deliberately removed any reference to probation.*fn4

The Sentencing Code, at 42 Pa.C.S. § 9721, directs a sentencing court to "select one or more of the following alternatives, [imposed either] consecutively or concurrently:

(1) An order of probation.

(2) A determination of guilt without further penalty.

(3) Partial confinement.

(4) Total confinement.

(5) A fine."

The sentencing court's amending order of August 5, 1981 imposed a fine, but it did not include any of the other sentencing alternatives. An indefinitely suspended sentence

[ 326 Pa. Super. Page 337]

    of imprisonment was not one of the alternatives available to the court.

Indefinitely suspended sentences were condemned by the Supreme Court in Commonwealth v. Duff, 414 Pa. 471, 200 A.2d 773 (1964), where the Court said:

"Theories of implied probation and indefinite suspension of sentence are not only contrary to the clearly expressed intention of the legislature, but are also violative of true principles of probation and, as in this case, promote confusion where none should exist."

Id., 414 Pa. at 474, 200 A.2d at 774. Although the Duff Court ascertained the intent of the legislature from earlier sentencing statutes, the same legislative intent is apparent from 42 Pa.C.S. § 9721(a). An indefinitely suspended sentence is not a sanctioned sentencing alternative. Moreover, it is as true now, as it was when Duff was decided, that an indefinitely suspended sentence violates "true principles of probation" and causes confusion where none should exist.

The Commonwealth argues that we should follow the reasoning employed by this Court in Commonwealth v. Harrison, 264 Pa. Super. 62, 398 A.2d 1057 (1979) and hold that a sentence of probation can be implied from the fact that the court imposed a sentence of imprisonment and then suspended it. This argument is not valid. It overlooks the fact that the only change effected by the amended sentencing orders of August 5, 1981 was to remove and eliminate those portions of the original sentences which had placed appellant on probation for a definite period. It is apparent, therefore, that the sentencing court did not intend to place appellant on probation. Where, as here, the sentencing court has deliberately rejected probation, a reviewing court cannot close its eyes to the sentencing court's intent and blindly place an interpretation on the sentencing order which the court has rejected.

It was the suspended sentences imposed by the Court on August 5, 1981 which the Court, on April 8, 1983, attempted to revoke in favor of sentences of imprisonment. It is this latter sentence which is presently subject to review and not

[ 326 Pa. Super. Page 338]

    the order of August 5, 1981. Therefore, we cannot remand for clarification of the suspended sentence, as a panel of this Court did in Commonwealth v. Brown, 290 Pa. Super. 448, 434 A.2d 838 (1981), where it remanded to the trial court to clarify an order which had indefinitely suspended sentence. It is now too late for that course. We must decide whether the sentencing court's order revoking an indefinitely suspended sentence and imposing belatedly a sentence of imprisonment was a legal exercise of the court's sentencing powers.

On August 5, 1981, appellant had been sentenced to pay fines of $300, plus costs of prosecution. Although the sentencing court also included language requiring appellant to serve terms of imprisonment, that portion of the order was effectively nullified by the later portion of the order which suspended the term of imprisonment. Without including a term of probation in the sentence, the court's language suspending imprisonment effectively eliminated and nullified a sentence of imprisonment. Only the imposition of the fine remained as a valid sentence.

On April 8, 1983, there was no probation which the court could revoke. To attempt to revoke the earlier sentences, which had required the payment of fines, and impose new sentences, which included not only fines but terms of imprisonment as well, was to attempt to sentence twice for the same offense. This violated principles of double jeopardy and cannot be permitted to stand. See: Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978), Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), cert. denied, 405 U.S. 1064, 92 S.Ct. 1490, 31 L.Ed.2d 794 (1972); Commonwealth v. Grady, 309 Pa. Super. 187, 455 A.2d 112 (1982); Commonwealth v. Coleman, 271 Pa. Super. 581, 414 A.2d 635 (1979); Commonwealth v. Tomlin, 232 Pa. Super. 147, 336 A.2d 407 (1975).

The judgments of sentence entered on April 8, 1983 are reversed and set aside.

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