J-S69045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GERALD F. DEARIE

                            Appellant                No. 1110 EDA 2014


         Appeal from the Judgment of Sentence entered March 5, 2014
              In the Court of Common Pleas of Delaware County
              Criminal Division at No: CP-23-CR-0005678-2009


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

JUDGMENT ORDER BY STABILE, J.:                   FILED DECEMBER 04, 2014

        In 2009, Appellant, Gerald F. Dearie, was sentenced to 10 to 23

months in jail followed by 36 months of probation for robbery.1 After his jail

sentence expired, Appellant violated his probation.      Even though he had

served his entire, original period of incarceration, the trial court recommitted

Appellant to serve back time for supposedly violating his parole.2 Appellant

argues, the Commonwealth agrees, and the trial court admits, that the

sentence is illegal. Therefore, we vacate and remand for resentencing.




____________________________________________


1
    18 Pa.C.S.A. § 3701.
2
  The trial court also revoked Appellant’s probation and imposed a new
sentence of 12 to 36 months in prison.
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       “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.” Commonwealth v. Jurczak,

86 A.3d 265, 267 (Pa. Super. 2014). A court sitting as a parole authority

may only recommit the parole violator to serve the remainder of his

sentence, and cannot impose a new sentence.                  Commonwealth v.

Galletta, 864 A.2d 532, 538 (Pa. Super. 2004); see 42 Pa.C.S.A.

§ 9776(e). It follows that a court cannot recommit an offender to serve an

already-served sentence.

      Here, Appellant’s violation occurred after his jail sentence expired. He

could not have violated parole from a sentence that he already served.

Recognizing its error, the trial court requests this Court to vacate Appellant’s

sentence.    The Commonwealth joins in that request.          The trial court also

asks that we remand for resentencing, averring that vacating the parole-

violation   sentence   will   disturb   its   sentencing   scheme.    See,   e.g.,

Commonwealth v. Serrano, 61 A.3d 279, 287-88 (Pa. Super. 2013)

(noting remand is required if partially vacating a sentence upsets the trial

court’s sentencing scheme).      As the trial court’s request is unopposed, we

vacate and remand for resentencing.

      Judgment of sentence vacated.            Case remanded for resentencing.

Jurisdiction relinquished.




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J-S69045-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




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