Com. v. Lindey
| Decision Date | 22 September 2000 |
| Citation | 760 A.2d 416 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Charles A. LINDEY, Appellee. |
| Court | Pennsylvania Superior Court |
Randa B. Clark, Asst. Dist. Atty., Butler, for Commonwealth, appellant.
J. Stevenson Suess, Butler, for appellee.
BEFORE: McEWEN, President Judge, DEL SOLE, J. and OLSZEWSKI, J.
¶ 1 The Commonwealth takes this appeal from a trial court order granting Appellee Charles Lindey's request for an appeal nunc pro tune from his 1984 conviction of indecent exposure following his guilty plea with the district justice and which allows the case to be heard de novo before a Court of Common Pleas judge. The Commonwealth claims the reasons provided by the court for its actions are not valid grounds for the grant of nunc pro tune relief. We reverse.
¶ 2 Before we consider the merits of the Commonwealth's claim we must determine whether this appeal is properly before us for review. Although neither party raises the matter, questions of jurisdiction may be raised sua sponte. Commonwealth v. Allburn, 721 A.2d 363 (Pa.Super.1998). The order granting a request for a nunc pro tunc appeal from a conviction at the district justice level to the Court of Common Pleas cannot be considered final under Pa.R.A.P. 341. It clearly does not end the litigation of this matter. However, we find we have jurisdiction to consider this appeal as an interlocutory appeal as of right under Pa.R.A.P. 311(a)(6), which allows an appeal as of right from an order awarding a new trial. The trial court's grant of the nunc pro tunc appeal from the conviction at the district justice level allowed the case to proceed to a de novo trial before the Court of Common Pleas. This action, in effect, is the grant of a new trial. The Commonwealth has a right to have this order reviewed. Absent such a right the case may proceed to trial and, in the event the Appellee is found not guilty of the charges, the Commonwealth will never have an opportunity to challenge the propriety of the trial court's actions which allowed the case to be opened and tried.
¶ 3 We now consider whether it was appropriate for the trial court to grant a nunc pro tunc appeal in this case. The trial court set forth the following rationale for its decision:
... Petitioner had gone to school to be a teacher and graduated with proper credentials to allow him to teach in the Pennsylvania school system. At the time the actor pled guilty, the crime of indecent exposure did not prevent an individual from securing a teaching position in the Commonwealth of Pennsylvania. However, between that time and this time, when the actor attempted to apply for a teaching position, he was presented with information that indicated that a crime of indecent exposure would now bar him from being considered for teaching positions in Pennsylvania. When the law in effect in 1984 did not provide for any bar to teaching for this conviction, the new law with retroactive effect has created an ex post facto scenario that prejudices the defendant.
The Court determines that this amounts to a breakdown in our judicial system and that the matter can only be rectified by allowing a nunc pro tune appeal for the Petitioner.
¶ 4 While it may be true that...
To continue reading
Request your trial
- Com. v. Davis
-
Com. v. Coolbaugh
...raises the issue of the timeliness of the appeal, "questions of jurisdiction may be raised sua sponte." Commonwealth v. Lindey, 760 A.2d 416, 418 (Pa.Super.2000). It is well established that "[w]hen an Act of Assembly fixes the time within which an appeal may be taken, a court may not exten......
-
Com. v. Dorm
...is an interlocutory appeal as of right. Pa.R.A.P. 311(a)(6). This Court has jurisdiction to decide such appeals. Commonwealth v. Lindey, 760 A.2d 416, 418 (Pa.Super.2000). 2. Additionally, there is no dispute that the victim was less than sixteen, Dorm was four or more years older than her ......