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COMMONWEALTH PENNSYLVANIA v. BRENT WALTER DORSEY (05/04/84)

filed: May 4, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
BRENT WALTER DORSEY, APPELLANT



No. 795 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County at No. 2176 of 1979.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Richard A. Sheetz, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Spaeth, President Judge, and Cavanaugh and Hoffman, JJ. Spaeth, President Judge, concurs in the result.

Author: Cavanaugh

[ 328 Pa. Super. Page 244]

This is an appeal from a Judgment of Sentence after finding a parole violation imposed by the Court of Common Pleas of Lancaster County. The pertinent facts are as follows: Dorsey pled guilty to a charge of robbery and was sentenced to a term of imprisonment of eleven and one-half months to twenty-three months. He was also fined, ordered to pay costs of prosecution, and to make restitution to the victim. Appellant was paroled less than nine months after being incarcerated and was directed as a specific condition of his parole to make payments on his fine, costs and restitution in the amount of $15.00 per week. Appellant subsequently violated the expressed condition of his parole by failing to satisfy the financial obligation imposed by the lower court and was therefore recommitted to serve the balance of his sentence.*fn1 Dorsey filed a motion to modify sentence which was denied. He then filed this direct appeal. For the following reasons we affirm in part, reverse in part and remand.

Initially, appellant claims that the notice he received informing him of his alleged parole violation and ensuing hearing was invalid; therefore, the lower court erred in even considering a parole violation. Specifically, he avers that the capias, although signed by the lower court prior to the expiration of his parole period, was not filed with the clerk of court until after the termination of his parole, therefore, the notice was invalid. We find no merit to this contention.

Our review of the record shows that the alleged parole violation occurred during the parole period and the notice in question was signed by the lower court five days prior to the expiration of appellant's parole, but the notice

[ 328 Pa. Super. Page 245]

    was not actually filed with the clerk of court's office for almost sixty more days. While not approving of this delay we see in it no prejudice to appellant. We do not agree with appellant's position that in all cases notice of an alleged parole violation must be issued prior to the expiration of a parole period. Furthermore, the record discloses that the Commonwealth complied with all of the required provisions regarding notice of the charges and the subsequent parole revocation hearing. See Commonwealth v. Kane, 315 Pa. Super. 212, 461 A.2d 1246 (1983); Commonwealth v. Ziegler, 286 Pa. Super. 26, 428 A.2d 220 (1981); Commonwealth v. DeLuca, 275 Pa. Super. 176, 418 A.2d 669 (1980); Pa.R.Crim.P. 1409. We therefore conclude that appellant received valid notice pertaining to his parole violation charge and revocation hearing.

Next appellant claims that there was an unreasonable delay between the alleged parole violation and the parole revocation hearing. He argues that there was almost a five month period of delay and that he was prejudiced by this lapse of time since the hearing took place subsequent to the expiration of his parole.*fn2

A revocation hearing may be held after the expiration of the parole period and this does not automatically cause a violation of the parolee's right to a speedy hearing. Commonwealth v. Gaus, 300 Pa. Super. 372, 446 A.2d 661 (1982); Commonwealth v. Burrell, 497 Pa. 367, 441 A.2d 744 (1982); Commonwealth v. Ruff, 272 Pa. Super. 50, 414 A.2d 663 (1979). A revocation hearing however, must be held as speedily as possible and within a reasonable time after the parole violation. Commonwealth v. Kane, supra; Commonwealth v. Sanders, 303 Pa. Super. 139, 449 A.2d 617 (1982); Pa.R.Crim.P. ...


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