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COMMONWEALTH PENNSYLVANIA v. JIMMY GONZALES (02/03/86)

filed: February 3, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JIMMY GONZALES, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 3170-3172 September 1982.

COUNSEL

Jeremy Ross, Philadelphia, for appellant.

Rona S. Totoki, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cavanaugh, Wickersham and Anderson, JJ.*fn*

Author: Wickersham

[ 350 Pa. Super. Page 375]

Jimmy Gonzales appeals from the judgment of sentence imposed on his conviction for third degree murder while in visible possession of a firearm.

On March 17, 1983, appellant was convicted of third degree murder and possessing an instrument of crime in a waiver trial before the Honorable Juanita Kidd Stout. On September 29, 1983, the trial court sentenced defendant to imprisonment for three (3) to twelve (12) years under the mitigated sentencing guideline range for the third degree murder conviction. The court also sentenced appellant to serve a concurrent term of two and a half (2 1/2) to five (5) years for the possession charge.*fn1

On October 7, 1983, the trial court sua sponte reconvened to vacate its sentence of September 29 on the murder charge.*fn2 The court then resentenced appellant to five (5) to

[ 350 Pa. Super. Page 376]

    twelve (12) years' incarceration pursuant to the Mandatory Minimum Sentencing Act, 42 Pa.C.S.A. ยง 9712.*fn3 Some five months prior to conviction the Commonwealth had served appellant's counsel with notice, pursuant to section 9712(b), of its intention to proceed under the Act.*fn4

[ 350 Pa. Super. Page 377]

In the instant appeal, Gonzales presents the following three issues:*fn5

I. Was appellant's state and federal right to be free from double jeopardy violated when, after he had originally been sentenced and had begun to serve that sentence, he was subjected to a second sentencing ...


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