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COMMONWEALTH PENNSYLVANIA v. JACK HARVEY KEESEY (03/23/84)

filed: March 23, 1984.

COMMONWEALTH OF PENNSYLVANIA,
v.
JACK HARVEY KEESEY, JR., APPELLANT



No. 48 Pittsburgh 1983, Appeal from the Order of the Court of Common pleas, Criminal Division, of Lawrence County, No. 673 of 1978.

COUNSEL

Robin Cleland, New Castle, for appellant.

J. Craig Cox, Assistant District Attorney, New Castle, for Commonwealth, appellee.

Cavanaugh, Johnson and Montgomery, JJ.

Author: Per Curiam

[ 326 Pa. Super. Page 132]

This appeal arises from the denial of appellant's motion for reconsideration and modification of sentence, and his motion to vacate sentence. Appellant alleges that the sentencing court erred in crediting time spent in confinement against a new sentence instead of his old sentence at No. 673 of 1978. The material facts are as follow:

Appellant received a suspended sentence on charges of forgery at Nos. 673 and 673A of 1978. As to No. 673, he was released on four years probation and ordered to pay the costs of prosecution and make restitution within four months of sentencing. Sometime thereafter, appellant failed to report to the probation department, failed to make payments as ordered and could not be located for a period of 20 months. During this time, he was charged with forgery and receiving stolen property at Nos. 276 and 276A of 1982, for acts which occurred on February 6, 1981. Three months later, he was returned to Lawrence County from Oregon. Approximately ten days after his return,

[ 326 Pa. Super. Page 133]

    appellant was charged with additional counts of forgery and receiving stolen property at Nos. 455 and 455A of 1982, for acts which also occurred on February 6, 1981.

The charges at Nos. 276 and 276A of 1982 were subsequently dismissed pursuant to Pa.R.Crim.P. 1100. Appellant thereafter proceeded to trial on Nos. 455 and 455A of 1982 and was found guilty as charged by the jury. Having violated his probation with, inter alia, this conduct and his failure to report and make payments as ordered, appellant's probation was revoked and the original sentence of two to four years imprisonment was imposed. The eleven days appellant served as a condition of his probation*fn1 were credited to the sentence imposed on Nos. 673 and 673A.

Our Supreme Court has held that

[I]f a defendant is being held in custody solely because of a detainer lodged by the Board [of Probation and Parole] and has otherwise met the requirements for bail on the new criminal charges, the time which he spent in custody shall be credited against his original sentence. If a defendant, however, remains incarcerated prior to trial because he failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence.

Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 147, 420 A.2d 381, 384 (1980), quoting, Gaito v. Pennsylvania Board of Probation and Parole, ...


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