Appeal from the Judgment of Sentence in the Court of Common Pleas of Centre County, Criminal Division, No: 1985-979.
Daniel McGee, State College, for appellant.
Ray F. Gricar, Dist. Atty., Bellefonte, for Com.
McEwen, Tamilia and Johnson, JJ.
[ 388 Pa. Super. Page 394]
Appellant Alfred Jones, Jr. was charged on October 4, 1985 with driving under the influence*fn1 on the evening of September 30, 1985. Appellant applied for Accelerated
[ 388 Pa. Super. Page 395]
Rehabilitative Disposition (hereinafter "ARD") and was recommended for the program by the Centre County district attorney's office. Appellant was placed on ARD status on February 13, 1986, and following the required hearing and colloquy the court entered an Order placing appellant under the supervision of the Centre County adult probation department for a period of twelve months from February 13, 1986 and subject to certain conditions. One of the enumerated requirements stated appellant "shall abide by and not violate any laws or statutes of this Commonwealth during his probationary period . . . ." On February 4, 1987, the Centre County district attorney filed a petition to terminate appellant's ARD status based on the filing of a criminal complaint on February 4, 1987, charging appellant with driving under the influence on January 29, 1987. Following a termination hearing on April 2, 1987, the court granted the petition by Order dated April 7, 1987. On April 13, 1987, the date of jury selection, appellant filed a motion to dismiss the case as violative of Pa.R.Crim.P. 1100 because appellant was not brought to trial within 180 days of the October 4, 1985 complaint. From April 13, 1987 to October 12, 1987, appellant obtained three continuances while awaiting disposition of his motion to dismiss. After a non-jury trial on November 20, 1987, appellant was found guilty of the offense charged. All post-trial motions for a new trial and in arrest of judgment having been denied, appellant brings this appeal from the October 20, 1988 judgment of sentence of a $300 fine, imprisonment of not less than 48 hours, psychiatric and psychological evaluations and counseling, safe driving school and suspension of driving privileges.
Appellant's sole issue on appeal is the application of Pa.R.Crim.P. Rule 1100*fn2 to ARD, particularly termination
[ 388 Pa. Super. Page 396]
of that status, and appellant has framed the questions involved as follows.
I. Is the 120 day period under Pa.R.Crim.P. 1100(e)(1) for commencing trial after a new trial has been awarded applicable to this case?
II. Is the time between the filing by the Commonwealth of a petition to revoke ARD and the disposition of that petition by the court excludable from the Rule 1100 ...