Summary
In Commonwealth ex rel. Backus v. Cavell, 186 Pa. Super. 48, 50, 140 A.2d 355, 356, allocatur refused, 186 Pa. Super. xxvii (1958), we stated: "The correction of the sentence does not constitute double jeopardy, as the manner and order of service have been directed by law."
Summary of this case from Commonwealth v. TaylorOpinion
March 20, 1958.
April 16, 1958.
Criminal law — Plea of double jeopardy — Constitutional law — Correction of sentence to conform with statutory mandate — Person convicted of crime while on parole.
1. The correction of a defendant's sentence to conform with the statutory mandate that a person convicted of a crime while on parole and sentenced to the penal institution from which he had been released on parole must serve the remainder of the term originally imposed before the commencement of the term imposed for the later crime does not constitute double jeopardy.
2. The plea of former jeopardy under Article I, § 10, of the Constitution of Pennsylvania is available to a defendant in a capital case only; and the provision in the Fifth Amendment to the Constitution of the United States prohibiting double jeopardy is a limitation on the powers of the federal government, and is not a limitation on the states.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeal, No. 94, Oct. T., 1958, from order of Court of Common Pleas of Philadelphia County, Sept. T., 1957, No. 498, in case of Commonwealth of Pennsylvania ex rel. Alphonso Backus v. Angelo C. Cavell, Warden. Order affirmed.
Habeas corpus.
Order entered dismissing petition, opinion by GUERIN, J. Relator appealed.
Alphonso Backus, appellant, in propria persona.
Juanita Kidd Stout, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Submitted March 20, 1958.
This is an appeal by relator from the dismissal of his petition for writ of habeas corpus as of No. 498, September Term, 1957, in the Court of Common Pleas No. 1 of Philadelphia County. The facts relating to his conviction and sentence are set forth in Com. ex rel. Backus v. Burke, 174 Pa. Super. 83, 99 A.2d 910. Relator attempts to raise the question of double jeopardy because his sentence was corrected to conform with the statutory mandate that a person convicted of a crime while on parole and sentenced to the penal institution from which he had been released on parole must serve the remainder of the term originally imposed before the commencement of the term imposed for the later crime. Com. ex rel. Dion v. Martin, 183 Pa. Super. 310, 131 A.2d 150; Com. ex rel. Kunkle v. Claudy, 171 Pa. Super. 557, 91 A.2d 382; Com. ex rel. McDevitt v. Burke, 166 Pa. Super. 194, 70 A.2d 663. The correction of the sentence does not constitute double jeopardy, as the manner and order of service have been directed by law. See People v. Rozea, 267 App. Div. 569, 47 N.Y.S. 2d 569; Wilson v. United States, 9 Cir., 149 F.2d 814.
Moreover, the plea of former jeopardy under Article I, § 10, of the Constitution of Pennsylvania is available to a defendant in a capital case only, and the provision in the Fifth Amendment to the Constitution of the United States prohibiting double jeopardy is a limitation on the powers of the federal government, and is not a limitation on the states. Com. ex rel. Sell v. Burke, 174 Pa. Super. 344, 349, 101 A.2d 174, allocatur refused 174 Pa. Super. xxvii.
Order is affirmed.