Commonwealth ex rel. Backus v. Cavell , 186 Pa. Super. 48 ( 1958 )

Opinion

Per Curiam,

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. Superior Ct. 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. Superior Ct. 310, 131 A. 2d 150; Com. ex rel. Kunkle v. Claudy, 171 Pa. Superior Ct. 557, 91 A. 2d 382; Com. ex rel. McDevitt v. Burke, 166 Pa. Superior Ct. 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. Superior Ct. 344, 349, 101 A. 2d 174, allocatur refused 174 Pa. Superior Ct. xxvii.

Order is affirmed.