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218 Pa. Super. 355

Commonwealth v. Davy

Superior Court of Pennsylvania

Decided June 22, 1971

Superior Court of Pennsylvania · decided 1971-06-22

Cited by 13 later decisions — most recently January 1986

13 state decisions

Relies on Commonwealth v. Silverman · Commonwealth v. Scheetz

Good law ✅— No negative treatment on recordhow we know

Decided 1971-06-22

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¶1Opinion by

Hoffman, J.,

¶2On August 13, 1969 appellant pled guilty to 27 counts of delivering checks with intent to defraud. Sentence was suspended, and he was placed on probation for a period of two years. On April 13, 1970 appellant was ordered recommitted for violation of probation, and on May 4, 1970 he was resentenced to two consecutive terms of one to two years.

¶3Subsequently appellant filed a Post Conviction Hearing Act petition alleging, inter alia, that his re-sentencing violated the constitutional prohibition against double jeopardy. From denial of that petition, this appeal followed.

¶4In Commonwealth v. Scheetz, 217 Pa. Superior Ct. 76, 268 A. 2d 193 (1970), this Court was presented with a similar factual situation. There appellant was given a suspended sentence of eight months to three years. • Subsequently, he violated the terms of his probation and was sentenced to a term of two to five years. This Court held that this resentencing was improper, and that the lower court could only reinstate the original sentence, not increase that sentence. Moreover, in the recent case of Commonwealth v. Silverman, 442 Pa. 211, 275 A. 2d 308 (1971), the Pennsylvania Supreme Court held that a modification of a sentence imposed *357on a criminal defendant which increased the punishment is double jeopardy.

¶5In the instant case, appellant originally received a suspended sentence of two years. Upon resentencing for violation of probation, this sentence was not merely reinstated, but modified and increased to a term of two to four years. By increasing the original sentence, the court punished appellant twice for the same offense.

¶6The order of the lower court is reversed and the record remanded for resentencing consistent with this opinion.

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