State v. Council

• Decision Date: 21 November 1975
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John COUNCIL, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 306

137 N.J.Super. 306

349 A.2d 71

STATE of New Jersey, Plaintiff-Respondent, v. John COUNCIL, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Nov. 10, 1975.

Decided Nov. 21, 1975.

Stanley C. Van Ness, Public Defender, for defendant-appellant (William D. Knowlton, Asst. Deputy Public Defender, of counsel and on the brief).

William F. Hyland, Atty. Gen., for plaintiff-respondent (John DeCicco, Deputy Atty. Gen., of counsel).

Before Judges FRITZ, SEIDMAN and MILMED.

PER CURIAM.

Defendant was indicted for the unlawful distribution of marijuana, in violation of N.J.S.A. 24:21--19(a)(1). After entering a Retraxit plea of guilty, he was sentenced to a State Prison term of one to two years, concurrent with a sentence he was then serving in a federal penitentiary, and he was fined the sum of $2500. He asserts on appeal that the trial judge improperly failed to give him credit for time served while he was subject to a detainer, and also that the fine imposed was manifestly excessive and unduly punitive.

It appears that when he was indicted defendant was serving a sentence in the Federal Penitentiary in Terre Haute, Indiana. The New Jersey authorities sent a bench warrant to that institution on July 25, 1973, to act as a detainer. Defendant was transferred to the Salem County jail on June 6, 1974, where he was confined until sentenced. The argument raised is that under R. 3:21--8 defendant was entitled to credit against his sentence fo time served subsequent to the filing of the detainer, both in the penitentiary and in the county jail. We disagree.

R. 3:21--8 provides that a defendant shall receive credit on the term of a custodial sentence for any time he has served in custody in jail or in a state hospital between his arrest and the imposition of sentence. But this refers only to such confinement as is attributable to the arrest or other detention resulting from the particular offense. See State v. Marnin, 108 N.J.Super. 442, 444, 261 A.2d 682 (App.Div.1970); State v. Brandfon, 38 N.J.Super. 412, 414, 119 A.2d 185 (Cty.Ct.1955), aff'd o.b. 40 N.J.Super. 328, 123 A.2d 30 (App.Div.1956). Cf. Lipschitz v. State, 43 N.J.Super. 386, 128 A.2d 728 (App.Div.1957).

The cases on which defendant relies are clearly distinguishable. In State v. Beatty, 128 N.J.Super. 488, 320 A.2d 514 (App.Div.1974), defendant was detained in a New York penal institution for a period of nearly nine months after his latest release date, as the result of detainer filed with New York authorities by New Jersey authorities. The court there held that defendant was entitled to credit for the time he was detained in New York Because of the action taken by New Jersey. Similarly, in Brown v. United States, 311 F.Supp. 325 (N.D.Ga.1970), the holding was that a defendant who was not permitted to make bail on state charges because of a federal detainer was entitled to credit on his federal sentences for the time he spent in state custody without bail.

Here, defendant's incarceration in the federal peintentiary was obviously for an unrelated offense. It has not been...