THE COURTS
[234 PA. CODE CH. 7]
Order Amending Rule 708; No. 278; Criminal Procedural Rules Doc. No. 2
[32 Pa.B. 1393] The Criminal Procedural Rules Committee has prepared a Final Report explaining the amendments to Rule of Criminal Procedure 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition). The amendments clarify that the filing of a motion to modify sentence in a violation case under Rule 708 does not toll the 30-day appeal period, and the appeal period in these cases runs from the date of sentence. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 26th day of February, 2002, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice, and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule of Criminal Procedure 708 is amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2002.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 7. POST-TRIAL PROCEDURES IN COURT CASES
PART A. Sentencing Procedures Rule 708. Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition.
* * * * * (D) Motion to Modify Sentence
A motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period.
Comment * * * * * Under this rule, the mere filing of a motion to modify sentence does not affect the running of the 30-day period for filing a timely notice of appeal. Any appeal must be filed within the 30-day appeal period unless the sentencing judge within 30 days of the imposition of sentence expressly grants reconsideration or vacates the sentence. See Commonwealth v. Coleman, 721 A.2d 798, 799, fn. 2 (Pa. Super. 1998). See also Pa.R.A.P. 1701(b)(3).
Once a sentence has been modified or reimposed pursuant to a motion to modify sentence under paragraph (D), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time sentence was modified or reimposed.
Official Note: Former Rule 1409 adopted July 23, 1973, effective 90 days hence; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment revised November 1, 1991, effective January 1, 1992; amended September 26, 1996, effective January 1, 1997; Comment revised August 22, 1997, effective January 1, 1998; renumbered Rule 708 and amended March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002.
Committee Explanatory Reports:
* * * * * Final Report explaining the February 26, 2002 amendments concerning the 30-day appeal period published with the Court's Order at 32 Pa.B. 1394 (March 16, 2002).
Final Report1
Amendments to Pa.R.Crim.P. 708
CLARIFYING 30-DAY APPEAL PERIOD FOLLOWING MOTION TO MODIFY SENTENCE IN PROBATION AND PAROLE VIOLATION CASES On February 26, 2002 effective July 1, 2002, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition). The amendments clarify that the filing of a motion to modify sentence in a violation case under Rule 708 does not toll the 30-day appeal period, and the appeal period in these cases runs from the date of sentence.
The Committee undertook a review of Rule 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition) in view of several inquiries the Committee has received concerning the distinction between the times for appeal under Rule 708 and Rule 720 (Post-Sentence Procedures; Appeal). Because Rule 720 provides that the appeal period runs from the date of the disposition of the post-sentence motion, Rule 720(A)(2), some judges and attorneys assume the same time for appeal applies when a motion to modify sentence is filed under Rule 708. Although the case law is clear that this construction of the appeal time in Rule 708 is not correct, and the appeal in a Rule 708 case runs from the date of the sentence, the Committee agreed the confusion arises because Rule 708 does not expressly address this issue.
After a thorough review of the matter, the Committee concluded that Rule 708 should be amended because (1) the sanction for failure to timely file the appeal in a Rule 708 case is so severe, and (2) the confusion may be attributed to Rule 708's silence. Accordingly, Rule 708 has been amended by adding ''the filing of a motion to modify sentence will not toll the 30-day appeal period'' as the second sentence of paragraph (D) (Motion to Modify Sentence). In addition, as an aid to the bar, we are proposing that the Rule 708 Comment be revised by adding a paragraph elaborating the rule change and cross-referencing Commonwealth v. Coleman, 721 A.2d 798 (Pa. Super. 1998), and Pa.R.A.P. 1701(b)(3), which address this issue.
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1 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
[Pa.B. Doc. No. 02-417. Filed for public inspection March 15, 2002, 9:00 a.m.]
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