DocketNumber: 43
Citation Numbers: 409 A.2d 33, 269 Pa. Super. 1
Judges: Cercone, President Judge, and Wieand and Hoffman
Filed Date: 3/25/1980
Status: Precedential
Modified Date: 8/25/2023
Appellant contends inter alia
On March 5, 1977, police arrested appellant and filed a written criminal complaint charging him with operating a motor vehicle under the influence of drugs or alcohol,
“I am aware and have been advised of the implications and consequences of the above application and (have/do not have) objection to the continuance. I am further aware of my right to a speedy trial and that a continuance shall cause
The lower court granted the continuance but for an unspecified period of time.
Rule 1100(a)(2) mandates that the Commonwealth commence appellant’s trial within 180 days of the filing of the written complaint. Any delay beyond 180 days must be either excluded from the computation of days pursuant to Rule 1100(d) or justified by an order granting an extension pursuant to Rule 1100(c). Commonwealth v. O'Shea, 465 Pa. 491, 495, 350 A.2d 872, 874 (1976). When, as here, the Commonwealth has not sought an extension of time under
Because the Commonwealth in the case at bar never applied for an extension of time under Rule 1100(c), it must prove that at least 30 days are excluded from the computation of time under Rule 1100(d). The Commonwealth may not rely upon appellant’s signed waiver because it is not valid. Coleman, supra. Even assuming defense counsel’s unavailability for the entire period from July 20,1977 to the end of the week of July 25, 1977, “it is clear that the reason for not scheduling [appellant’s] trial in the remaining days of the [Rule 1100] period was because the court calendar would not permit. Thus, the Commonwealth’s claim for excusing the commencement of trial on the days following [the admitted period of unavailability] rests upon a claim in the nature of ‘judicial delay’ rather than . . . unavailability . . . . Our cases have made clear that scheduling difficulties may provide the basis for the request of an
Judgment of sentence reversed and vacated and appellant discharged.
. Appellant also contends that the lower court erred in not sustaining his demurrer. Because of our disposition on the Rule 1100 issue, we need not reach the merits of this claim.
. 75 Pa.C.S.A. § 1542.
. 75 Pa.C.S.A. § 3714.
. 18 Pa.C.S.A. § 2504.
. It is unclear from the record when the lower court granted the continuance. We have only the written application before us which indicates that (1) appellant signed the waiver on July 13, 1977, (2) appellant’s counsel signed the continuance on July 14, 1977, and (3) the prosecutor’s office signed the application, thereby indicating it was not opposed, on July 20, 1977. On the bottom portion of the application, the lower court indicated that it granted the application for continuance by marking an “X” after the word “Granted” and signing it. The lower court did not date its grant. However, the application, complete with the lower court’s signature, was filed on July 20, 1977. We conclude from the above that the continuance was granted on July 20, 1977.
. Because the trial judge had not yet directed the parties to proceed to voir dire or opening argument nor taken any other such first step in the trial, appellant’s Rule 1100(f) motion was timely filed. See Commonwealth v. Evans, 249 Pa.Super. 142, 375 A.2d 799 (1977).