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COMMONWEALTH PENNSYLVANIA v. LLOYD MARTIN MCCUTCHEON (02/08/85)

filed: February 8, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
LLOYD MARTIN MCCUTCHEON, APPELLANT



NO. 00510 PITTSBURGH 1983, Appeal from the Judgment of Sentence in the Court of Common Pleas of Crawford County, Criminal No. 1982-685

COUNSEL

William L. Walker, Meadville, for appellant.

John M. Dawson, Assistant District Attorney, Meadville, for Commonwealth, appellee.

Spaeth, President Judge, and Brosky and Montgomery, JJ.

Author: Spaeth

[ 339 Pa. Super. Page 11]

This is an appeal from judgment of sentence for driving under the influence of alcohol.*fn1 Appellant argues that the trial court improperly granted the Commonwealth's petition for an extension of time under Pa.R.Crim.P. 1100. We agree and therefore reverse the judgment of sentence and discharge appellant.*fn2

The criminal complaint was filed on March 1, 1982. After a preliminary hearing on April 6, 1982, appellant was held over for court. A member of the District Justice's staff misfiled the papers on appellant's case; instead of transmitting them to the County Clerk of Court, she filed them in the "closed file." N.T. 12/13/82, 11. In November 1982 appellant's counsel happened to meet the police officer who had filed the complaint. Counsel asked the officer about the case. The officer said he would check into it, and telephoned the District Attorney's office, to be told that the papers had never been received, N.T. 12/13/82, 6-7.*fn3 On November 12, 1982, a member of the District Attorney's office called the District Justice's office, and, upon learning about the misfiling, directed that the papers be sent to the courthouse immediately. N.T. 12/13/82, 12. On November 15, 1982, the complaint and transcript were filed. On November 30, 1982,*fn4 the Commonwealth filed a petition for an extension of time under Rule 1100, identifying the source of the delay and alleging its "due diligence." Appellant filed an answer and moved for a dismissal of the charges against him. The trial court denied appellant's

[ 339 Pa. Super. Page 12]

    motion and granted the petition for an extension. Appellant was tried and convicted, and after being sentenced, took this appeal.

-1-

A petition for an extension of time must be filed "prior to the expiration of the period for commencement of trial." Pa.R.Crim.P. 1100(c)(1). The "period for commencement of trial" is 180 days. Pa.R.Crim.P. 1100(a)(2). In counting these 180 days, certain days are excluded. Pa.R.Crim.P. 1100(d). Specifically, "there shall be excluded": the period between the filing of the complaint and the defendant's arrest, where the defendant's whereabouts were unknown and could not be determined by due diligence; any period for which the defendant waives the rule; and such period as results either from the unavailability of the defendant or his attorney, or from a continuance granted at the request of the defendant or his attorney. Id. Here, there was no period fitting any of these categories. The only period in question was the period from April 6, 1982 (the date of the preliminary hearing) to November 12, 1982 (the date the District Justice's office discovered that the papers had been misfiled). This period may not be excluded -- nor does the Commonwealth claim that it may be -- for judicial delay*fn5 is not excludable under Rule 1100(d). Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Ellison, 249 Pa. Super. 339, 378 A.2d 325 (1977). Since no days may be excluded, the 180 day period for the commencement of appellant's trial ended August 30, 1982.*fn6 Accordingly, the Commonwealth's petition for an

[ 339 Pa. Super. Page 13]

    extension of time, not being filed until November 15, 1982, was not filed "prior to the expiration of the period from commencement of trial", Pa.R.Crim.P. 1100(c), and should have been denied. Commonwealth v. Shelton, supra ...


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