Appeal from the PCHA of May 31, 1984 in the Court of Common Pleas of Dauphin County, Criminal Division, No. 894, 895 C.D. 1974
Before: Cavanaugh, Cercone and Lipez, JJ.
I write separately only to address appellant's argument that his fifth amendment rights against double jeopardy have been infringed. The majority disposes of this claim on the basis of Commonwealth v. Gallaqhe r, 296 Pa. Super. 382, 442 A.2d 820 (1982), holding that an oral, non-docketed sentence is without legal effect. While support for this proposition is ample, I do not believe that it alone suffices to obviate a challenge to sentencing on the grounds of double jeopardy.
The double jeopardy clause of the fifth amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This protection has long been construed to prevent a criminal defendant from twice being punished for the same offense. See Ex parte Lange, 85 U.S. 163 (1873). Similarly, it has been held that "to increase the penalty [already ordered] is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution...." U.S. v. Benz, 282 U.S. 304, 306 (1931).
The applicability of this double jeopardy protection does not depend upon whether the sentence(s) imposed is oral or written. Compare Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), cert. denied, 405 U.S. 1064 (1972); Commonwealth v. Grady, 309 Pa. Super. 187, 455 A.2d 112 (1982) (in each case, violation of double jeopardy where court orally sentenced defendant and later imposed harsher penalty in written order) with Commonwealth v. Ferrier, 326 Pa. Super. 331, 473 A.2d 1375 (1984) (violation of double jeopardy where court attempted to increase written, docketed sentence). A violation of the double jeopardy clause will occur, however, if the original sentence, pronounced either orally or in writing, is later increased after the defendant has begun serving it. See Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971); Commonwealth v. Unger, 315 Pa. Super. 408, 462 A.2d 259 (1983). See also U.S. V. Benz, 282 U.S. 304 (1931).
In the present case, appellant was initially sentenced to seven and one-half to fifteen years on the attempted murder conviction and to a term of life imprisonment on the murder conviction. As the majority notes, only one hour later the court re-sentenced the appellant to consecutive terms of five to ten years and life imprisonment. Because he had not yet begun to serve the initial sentence, appellant's double jeopardy rights could not have been violated.