Commonwealth v. Derringer
Annotate this CaseDefendant was indicted for being a persistent felony offender (PFO) 2. The PFO 2 count was based on an earlier conviction for which Defendant was granted diversion. Defendant was still on diversion when the grand jury indicted him for the later offenses. Upon Defendant's motion, the trial court dismissed the PFO 2 count because Defendant had not been finally sentenced on the previously diverted felony. The Supreme Court affirmed, holding (1) a conviction for which a defendant is currently on diversion cannot be used to indict that defendant as a PFO 2 when he commits a subsequent felony offense; and (2) the sentence on the prior felony must be imposed at the time the defendant commits the subsequent crime in order for the conviction to support a PFO 2 charge.
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