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COMMONWEALTH PENNSYLVANIA v. JOHN FIORE (04/12/85)

filed: April 12, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN FIORE, APPELLANT



No. 00118 Harrisburg 1984, Appeal from the Order of the Court opf Common Pleas, Criminal Division, of Dauphin County at No. 2041, 2041(A), 2041(B), 2041(C) and 2041(D) Criminal Division, 1982.

COUNSEL

C. Grainger Bowman, Harrisburg, for appellant.

Paul M. Yatron, Harrisburg, for Commonwealth, appellee.

Wickersham, Del Sole and Popovich, JJ.

Author: Popovich

[ 341 Pa. Super. Page 306]

This is an appeal from an order vacating judgment of sentence and directing the State of Delaware to remand appellant, John Fiore, to the Commonwealth of Pennsylvania to serve sentence. We reverse.

After pleading guilty to 24 counts of non-compliance with various tax statutes (see 72 P.S. §§ 2614.21(a), 7268(b)), appellant was sentenced to 11 1/2 to 23 months imprisonment

[ 341 Pa. Super. Page 307]

    and 8 years probation, which was to be served at the completion of the term of imprisonment. Also, appellant was ordered to pay the cost of prosecution and $100 to the Commonwealth.

A timely motion to modify sentence was filed seeking the Dauphin County court's approval to have appellant serve his Pennsylvania sentence (ordered to commence on December 26, 1983) in the State of Delaware upon his sentence in that State for similar tax violations. Thereafter, under the mantle of 42 Pa.C.S.A. § 9761(b), appellant filed a motion substantiating his request that service of his Delaware sentence (a period of incarceration up to 23 months to commence also on December 26, 1983) either satisfy or be credited against his Pennsylvania sentence.

By order dated December 14, 1983, the Dauphin County court directed that appellant "be given full credit for time served by him under the sentence imposed by the Superior Court of Delaware (New Castle County) in the action known as State of Delaware v. John Fiore and Zurich Corp., Cr. A. Nos. N-82-10-1732 through N-82-10-1787."

On February 9, 1984, a rule to show cause was issued upon appellant by the Commonwealth, and contained therein were the following relevant averments:

3. Defendant commenced his prison sentence in the State of Delaware on December 26, 1983, which was the same day set for commencement of his sentence in Pennsylvania.

4. On or about January 4, 1984, defendant was released by correctional authorities to the State of Delaware and permitted by them to serve his sentence in what is known in Delaware as "supervised custody".

5. "Supervised custody", as that program is known in the State of Delaware, is in all respects identical to a sentence of probation in the Commonwealth of Pennsylvania or the release ...


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