increase in minimum sentence following violation not prohibited by double jeopardy considerations
How later courts described this case
- increase in minimum sentence following violation not prohibited by double jeopardy considerations
- Spaeth & Hoffman, JJ., dissenting
Written by the judges who cited it.
The opinion
Concurring Opinion by
Van der Voort, J.:
I fully concur in the result reached by my colleague Judge Jacobs. I disagree with the theory upon which the result is reached. As I see it, the issue involved in this appeal is whether or not the vacating of a sentence of imprisonment in order to impose a sentence of probation completely nullifies the original sentence (hereinafter referred to as the first sentence). The lead opinion states that where the first sentence is vacated and a term of probation is imposed upon violation of the probation the sentence which may be imposed for such violation is limited to the maximum specified in the first sentence.
As I wrote in Commonwealth v. Tomlin, 232 Pa. Superior Ct. 147, 152 , 336 A.2d 407 (1975), the vacating of a sentence of imprisonment in order to impose a period of probation should completely nullify the first sentence and the court should not be limited in any subsequent sentence in the event of a violation of the probation to what was stated in the first (now nullified) sentence. I believe that the vacating of the first sentence renders the sentence void for all purposes including that of a claim of double jeopardy.
The reason for this belief of mine is that sentencing is a delicate art requiring great depth of knowledge, profound understanding, the ability to be firm at one time, compassionate at another and the competency to know when to be the one and when to be the other. There *621 are many cases when the line between a sentence of confinement and one of probation to be imposed upon a person found guilty of a crime is extremely fine. Judges imposing sentences of confinement in such cases frequently make the sentence less severe. Then because of the subsequent pleas of counsel on behalf of the prisoner, or the family of the prisoner or pleas of the prisoner himself the judge is persuaded to change the sentence to probation. In many cases this works out all right. But where it does not work out all right and the judge is faced with imposing a sentence for violation of probation he now finds he is “booby trapped”. He can no longer exercise his discretion; thus sentencing is no longer an art. As a consequence of this current rule of law I believe the first sentence to confinement will now tend to be unnecessarily severe because the judge will be afraid of unduly limiting himself in his sentencing should he change the sentence to one of probation. Furthermore, the judge will now hesitate to change sentences from confinement to probation in cases where such a change is much the better for society.
I am encouraged by the fact that the lead opinion regards the first sentence as ineffective insofar as the minimum sentence is concerned. I can hope that the law will one day be that the first sentence is ineffective insofar as any part of the sentence is concerned.