Opinion
June 28, 1979.
Pennsylvania Board of Probation and Parole — Timeliness of hearing — Time detained in county facility.
1. A final parole revocation hearing must be held within one hundred twenty days after the Pennsylvania Board of Probation and Parole receives official verification of the new conviction, but that time period does not run while the parolee is detained in a county facility awaiting disposition of other charges. [602-3]
Submitted on briefs, April 30, 1979, to President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., MENCER, ROGERS, BLATT, DiSALLE, CRAIG and MacPHAIL.
Original jurisdiction, No. 104 Miscellaneous Docket No. 2, in case of Spencer R. Dobson, Jr. v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole. Petition for review in the Commonwealth Court of Pennsylvania challenging recommitment as convicted parole violator. Motions for summary judgment filed. Respondent directed to file supplementary affidavit. ( 41 Pa. Commw. 27) Affidavit filed. Held: Motion of petitioner denied. Motion of respondent granted.
Spencer R. Dobson, Jr., petitioner, for himself.
Robert A. Greevy, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for respondent.
In Dobson v. Pennsylvania Board of Probation and Parole, 41 Pa. Commw. 27, 398 A.2d 252 (1979), we tentatively denied the motions for summary judgment of Spencer R. Dobson, Jr., and the Board and directed the Board to file a supplemental affidavit. After receipt of the affidavit, there being no existing material issue of fact, we grant the Board's motion.
The affidavit indicates that on April 27, 1977, the Board received official verification of Mr. Dobson's April 6, 1977 conviction for the offense of carrying a firearm without a license. The affidavit indicates that he was further detained by the County authorities on open charges of robbery, theft, aggravated assault and other related charges separate from those disposed of by the April 6, 1977 conviction. On June 24, 1977, Mr. Dobson was found not guilty on all charges related to the robbery. The Board received official verification of the not guilty verdict on July 6, 1977. The full Board revocation hearing was held on September 16, 1977. Dobson argues that his revocation hearing should have been held within 120 days of the April 6, 1977 conviction. We disagree.
Where a person is detained in a county prison awaiting disposition of other charges, that time is excluded from the 120-day requirement. Tate v. Pennsylvania Board of Probation and Parole, 40 Pa. Commw. 4, 396 A.2d 482 (1979). Thus, petitioner's revocation hearing within 120 days of official verification of the June 24, 1977 conviction was timely and in keeping with the Board's regulation at 37 Pa. Code § 71.4(2).
Accordingly, we
ORDER
AND NOW, this 28th day of June, 1979, the cross motion for summary judgment filed by Spencer R. Dobson, Jr., is denied and that of the Pennsylvania Board of Probation and Parole is granted.