Com. v. Kelley, M. ( 2015 )


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  • J-A32005-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MARLIN J. KELLEY,
    Appellant                  No. 278 WDA 2015
    Appeal from the Order February 13, 2015
    In the Court of Common Pleas of Greene County
    Criminal Division at No(s): CP-30-CR-0000443-2013
    BEFORE: SHOGAN, OTT, and STABILE, JJ.
    JUDGMENT ORDER BY SHOGAN, J.:                 FILED NOVEMBER 25, 2015
    Marlin J. Kelley (“Appellant”) appeals from an order denying his motion
    to prohibit retrial on double jeopardy grounds.   Order, 2/13/15.    We may
    exercise jurisdiction over this appeal only to the extent that the order
    denying Appellant’s pretrial motion qualifies as a collateral order under
    Pa.R.A.P. 313.
    To establish whether a motion to dismiss on double jeopardy
    grounds qualifies as a collateral order, trial courts must now,
    inter alia, satisfy [Pa.R.Crim.P.] 587(B)(3), (4), (5), and (6).
    Subsection (B)(3) requires the trial court, following a hearing, to
    enter on the record a statement of findings of fact and
    conclusions of law and its disposition of the double jeopardy
    motion. Subsection (B)(4) requires the trial court to render a
    specific finding on frivolousness in the event the court denies the
    double jeopardy motion. Subsection (B)(5) requires the trial
    court, if it finds frivolous the double jeopardy motion, to inform
    on the record a defendant of his or her right to petition for
    review under Pa.R.A.P. 1573 within [thirty] days of the order
    denying the motion. Subsection (B)(6) requires the court to
    J-A32005-15
    advise a defendant of his immediate right to a collateral appeal if
    the court does not find the double jeopardy motion to be
    frivolous.
    Commonwealth v. Taylor, 
    120 A.3d 1017
    , 1022–1023 (Pa. Super. 2015).
    Here, our review of the record reveals the trial court failed to render a
    specific finding on the record regarding frivolousness, as required under
    Pa.R.Crim.P. 587(B)(4).        Thus, the trial court failed to comply with Rule
    587(B)(4) through (6).        Because the trial court failed to fully comply with
    Rule 587(B), we are unable to determine whether we may exercise
    jurisdiction over this appeal. Therefore, we remand this matter to the trial
    court for compliance with Rule 587(B) and preparation of a supplemental
    Pa.R.A.P. 1925(a) opinion within sixty days of the date of this judgment
    order. Upon the filing of a supplemental opinion, the certified record is to be
    promptly returned to this Court.
    Case remanded. Panel jurisdiction retained.1
    ____________________________________________
    1
    Our retaining of jurisdiction over this appeal would not excuse Appellant’s
    non-compliance with Pa.R.Crim.P. 587(B)(5) and Pa.R.A.P. 1573 in the event
    the trial court determines that his double jeopardy motion is frivolous.
    Taylor, 120 A.3d at 1023.
    -2-
    

Document Info

Docket Number: 278 WDA 2015

Filed Date: 11/25/2015

Precedential Status: Precedential

Modified Date: 11/25/2015