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COMMONWEALTH PENNSYLVANIA v. ANTHONY FORTUNE (06/21/85)

submitted: June 21, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY FORTUNE, APPELLANT



Appeal from the Order entered October 11, 1984 in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 84-002130 and 83-07-0856.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

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

Brosky, Watkins and Hoffman, JJ.

Author: Hoffman

[ 346 Pa. Super. Page 466]

This is an appeal from the judgment of sentence for theft of a motorcycle license plate. Appellant contends that the Commonwealth did not prove that the trial dates scheduled after each continuance were the earliest possible trial dates consistent with the court's business as required under Pa.R.Crim.P. 6013. Because we agree that there is no proof in the record that the trial date following the second continuance was the earliest possible date, we reverse and vacate the judgment of sentence.*fn1

[ 346 Pa. Super. Page 467]

On July 12, 1983, appellant was arrested and charged with theft and receiving stolen property. The mechanical run-date, the last day that appellant's trial could begin in accordance with Pa.R.Crim.P. 6013(a)(2), was November 10, 1983, 120 days after the preliminary arraignment. Trial was initially scheduled for August 23, 1983, but, because of the trial judge's heavy caseload, was continued to October 12, 1983.

On October 12, the second scheduled trial date, appellant's trial was again continued, this time because the arresting officer was ill. Trial was rescheduled for November 25, 1983. On that date the Commonwealth filed an oral Rule 6013 motion to extend the time for commencement of trial because the arresting officer was on vacation. The trial was continued until February 6, 1984.

On February 6, the trial court denied appellant's motion to dismiss for violation of Rule 6013 and proceeded to trial. Appellant was found guilty of theft and receiving stolen property following a non-jury trial, and was sentenced to pay $250 in fines and seventy dollars in costs. Appellant's appeal to the Court of Common Pleas was filed and denied. This appeal followed.

Pennsylvania Rule of Criminal Procedure 6013 provides in relevant part, that:

(c)(1)(i) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the Court orally or in writing for an order extending the time for commencement of trial. The defendant shall have the right to be heard on the Commonwealth's motion.

(iii) Such motion shall allege facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period ...


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