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COMMONWEALTH PENNSYLVANIA v. TIMOTHY BROWN (11/22/89)

filed: November 22, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
TIMOTHY BROWN



Appeal from the Order docketed February 10, 1989, Court of Common Pleas, Philadelphia County, Criminal Division at No. 8810-4350.

COUNSEL

Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Jeffrey P. Shander, Philadelphia, for appellee.

Olszewski, Del Sole and Johnson, JJ.

Author: Johnson

[ 389 Pa. Super. Page 67]

The Commonwealth appeals the Order placing Timothy Brown on probation. In this case we find that a defendant is not eligible for probation pursuant to 35 P.S. § 780-117 (section 17) and must be sentenced in compliance with the mandatory minimum sentencing provisions of 18 Pa.C.S. § 7508 (section 7508) where the defendant has committed a crime under 35 P.S. §§ 780-113(a)(14, 30) involving the type and quantities of substances set forth in section 7508. Accordingly, we vacate the judgment of sentence and remand for resentencing consistent with the mandatory minimum sentencing requirements.

On October 11, 1988, a Philadelphia police officer observed Brown make two drug sales. Thereafter, Brown was arrested and charged with Knowingly or Intentionally Possessing a Controlled Substance, and with the Manufacture, Delivery or Possession with Intent to Manufacture or Deliver a Controlled Substance. On November 1, 1988, the Commonwealth gave notice to the court that it intended to

[ 389 Pa. Super. Page 68]

    proceed under the mandatory minimum sentencing requirements set forth in section 7508. On February 10, 1989, defendant entered a plea of nolo contendere to manufacture, delivery or possession with intent to manufacture or deliver in excess of two grams of cocaine. In addition, Brown demonstrated to the satisfaction of the court that he had a drug dependency. The court accepted Brown's plea and placed him on a conditional three years' probation pursuant to section 17. The minimum sentencing term of one year imprisonment and the fine of $5,000.00 mandated by section 7508 were not imposed.

The Commonwealth filed a Petition to Reconsider Section § 17 which was denied. The Commonwealth then appealed the order of probation pursuant to section 7508(d), which provides for appellate review of any sentence not in compliance with section 7508.

On appeal, the Commonwealth raises the following question: where the defendant pleads nolo contendere to violating 35 P.S. § 780-113(a)(30) of the Controlled Substance, Drug, Devise and Cosmetic Act, may the trial court circumvent the mandatory minimum sentencing provisions of section 7508 by sentencing the defendant to probation under section 17. This is an issue of statutory interpretation.

The section under which Brown was placed on probation, section 17, provides:

A person may be entitled to probation without verdict under the ...


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