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COMMONWEALTH PENNSYLVANIA v. CIRO MIGLIORE (07/24/84)

submitted: July 24, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
CIRO MIGLIORE, SR., APPELLANT



No. 2422 Philadelphia, 1983, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal, at No. 74-06-0329-0331.

COUNSEL

A. Charles Peruto, Sr., Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cirillo, Montemuro and Cercone, JJ.

Author: Montemuro

[ 333 Pa. Super. Page 73]

This is an appeal from an order entered by the Court of Common Pleas of Philadelphia County, revoking probation and imposing a sentence of incarceration.

The pertinent facts are as follows: In 1973, appellant shot the victim in the back, permanently paralyzing him below the waist. Appellant pled guilty before the Honorable Marvin R. Halbert to charges of aggravated assault,*fn1 conspiracy,*fn2 and possessing an instrument of a crime.*fn3 On July

[ 333 Pa. Super. Page 7430]

, 1974, appellant was sentenced to ten (10) years probation on the aggravated assault bill, conditioned upon payment to the victim of $30,000 restitution. This amount was to be paid in installments of $3000 per year. Concurrent sentences of two (2) years probation were issued on each of the remaining convictions. An initial $2000 payment was made within ninety (90) days of sentencing and a few other payments followed. However, once the figure of $6000 was reached, regular payments ceased. Following the scheduling and continuance of several violation of probation hearings, a single payment of $7800 was made in May of 1981. Despite repeated demands, no further payments have been forthcoming.

On September 7, 1983, a violation of probation hearing was held in regard to the non-payment of restitution. At the conclusion of the hearing, probation was revoked and appellant was ordered to spend eight (8) to twenty-three (23) months in the county prison. Thereafter, restitution payments were to resume.

On appeal, appellant asserts that his present incarceration is constitutionally forbidden because of the recent decision of the United States Supreme Court in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). At a minimum, appellant argues that the court below was obligated to consider, as alternatives to imprisonment, other methods of punishment. Specifically, the holding of Bearden states the following:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range ...


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