APPEAL FROM THE ORDER JANUARY 30, 1985 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CRIMINAL NO. 1515 OF 1984.
Ann Osborne, Assistant District Attorney, Radnor, for Com., appellant.
Timothy J. Gorbey, Chester, for appellee.
Cirillo, President Judge, and Rowley and Hoffman, JJ.
[ 367 Pa. Super. Page 625]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Delaware County granting the appellee's petition to dismiss a drunk driving charge pursuant to Pennsylvania Rule of Criminal Procedure 1100 (speedy trial). The sole issue on appeal is whether the trial court erred in granting appellee's Rule 1100 application when the court failed to list the case for trial based upon the Commonwealth's refusal to place the appellee in the Accelerated Rehabilitative Disposition (ARD) program. We affirm.
On March 11, 1984, appellee collided with another vehicle stopped at a traffic light, and a blood test determined his blood-alcohol content level to be .16%. On that date, appellee was charged with driving under the influence (DUI), driving while operating privileges are suspended, and operation of a vehicle without official certificate of inspection. After a preliminary hearing, appellee was held for court on the DUI charge; however, the other charges were dismissed.
On June 4, 1984 at appellee's guilty plea hearing, the attorney for the Commonwealth stated, in response to the court's inquiry, that appellee was ineligible for the ARD program because he had been driving under a license suspension. The court directed the district attorney to entertain appellee's ARD application, at which time appellee waived the running of Rule 1100 until June 18, 1984.
[ 367 Pa. Super. Page 626]
On June 18, 1984, the Commonwealth reiterated its decision to deny ARD based upon appellee's license suspension. The trial court took issue with this decision because the license suspension charge had been dismissed, and on June 20, entered an order directing the Commonwealth to submit the case for ARD consideration. The Commonwealth refused and requested a trial date.
On July 19, 1984, the Commonwealth filed a Rule 1100(c) extension request, which was granted on September 7, 1984 for a period of 30 days. On October 4, before the expiration of the 30-day extension, the court held a hearing at which time it refused to set a trial date despite the Commonwealth's reiteration that it was prepared to go to trial. However, the court indicated that it would reconsider its order concerning appellee's ARD admission if provided with a transcript of the preliminary hearing to determine upon what grounds the license suspension charge had been dismissed. Further, the court stated that the Commonwealth had the option of either placing appellee on ARD or certifying the question for interlocutory appeal, and also indicated that it would entertain applications filed before or after the Rule 1100 run date. The court further suggested to the Commonwealth that it file for another Rule 1100 extension if necessary to obtain the preliminary hearing transcript.
The Commonwealth declined to exercise the options offered by the court, and on January 30, 1985 the court granted appellee's Rule 1100(f) dismissal petition. The Commonwealth now appeals.
After the filing of the appeal, the court wrote an opinion stating that its dismissal of the prosecution had been improper because, based on the subsequent decision in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), the court had no right ...