State v. Jefferson, 296

• Citation: 123 A.2d 579,40 N.J.Super. 466
• Decision Date: 21 June 1956
• Docket Number: No. 296,296
• Parties: The STATE of New Jersey v. Leroy JEFFERSON. Motion . Appellate Division. Considered
• Court: New Jersey Superior Court – Appellate Division

Page 466

40 N.J.Super. 466

123 A.2d 579

The STATE of New Jersey v. Leroy JEFFERSON.

Motion No. 296.

Superior Court of New Jersey Appellate Division.

Considered June 21, 1956.

Decided June 25, 1956.

Mr. Leroy Jefferson, pro se.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant's application for leave to appeal In forma pauperis is denied. He claims double jeopardy, arguing that the consecutive sentences imposed by the Monmouth County Court on January 22, 1954 on three charges of atrocious assault and battery were improper bacause the offenses arose out of one act and were established by the same evidence. He further contends, generally and without specification, that the indictment was improper because the three offenses, and six additional ones, were set up by way of nine separate counts.

The factual background of this case may be found in an unpublished opinion handed down by this court on October 13, 1954 (Docket A--730--53):

'Defendant appeals from an order of the Monmouth County Court denying his petition for correction of illegal sentence.

'On July 22, 1953 defendant attempted to force his way into an Asbury Park apartment while drunk. In the course of doing so he broke a window or a door. The apartment occupant phoned police headquarters and several officers were at once dispatched to the scene of the incident. When they attempted to arrest defendant and take him to headquarters he resisted arrest, got into an extended scuffle with the officers, and beat them. As a result, the municipal magistrate imposed sentences of one year in county jail for being a disorderly person and three months for malicious mischief. He further ordered that defendant be held for the grand jury.

'Thereafter the grand jury returned indictment No. 6524, in nine counts, charging defendant with atrocious assault and battery upon each of three named police officers (counts 1, 4 and 7), simple assault and battery (counts 2, 5 and 8), and assault and battery upon the officers in the execution of their duties (counts 3, 6 and 9). Defendant's family retained counsel who represented defendant at every stage of the ensuing proceedings. On September 11, 1953 defendant entered a plea of not guilty. This plea was withdrawn on September 28 and defendant pleaded Non vult to counts 2, 5 and 8 charging simple assault and battery. On October 16, the date set for sentence, counsel suggested to the court that his client might possibly have had justifiable reason for striking back at the officers, that defendant was handcuffed when the alleged striking took place, and that he had been manhandled. The County Court judge then permitted withdrawal of the Non vult plea and directed the clerk to enter a plea of not guilty. Six days later, on October 22, defendant by his attorney again retracted the not guilty plea and pleaded Non vult to counts 1, 4 and 7 of the indictment charging atrocious assault and battery against the respective officers. The court specially inquired whether defendant thoroughly understood the significance of the plea, and defendant as well as his counsel answered in the affirmative.

'The State moved for imposition of sentence on October 30, and counsel for defendant requested that his client be sent to the Marlboro State Hospital for classification. The court acceded to the request. Finally, on January 22, 1954, defendant was sentenced to State Prison for a term of three to seven years on count 1, a like term on count 4, and two to five years on count 7, the terms to run consecutively, credit to be given for 185 days spent in the county jail.

'Defendant petitioned the County Court for correction of illegal sentence (R.R. 3:7--13). The court denied the application on April 23, 1954. This appeal followed.

'The application here sounds in Habeas corpus, and not for correction of sentence, for defendant claims he is entitled to release from imprisonment forthwith. * * *' Defendant is now serving the consecutive sentences imposed on counts 1, 4 and 7. No sentences were imposed on the remaining six counts, and they are apparently awaiting Nolle pros. on the recommendation of the prosecutor.

Any objection that might theoretically be directed to the form of the indictment is entirely out of time. It could be raised only by direct appeal, and the time for appeal has passed. R.R. 1:3--1 and R.R. 1:27B (formerly R.R. 1:1--9). As observed in our former opinion, had defendant sought to enlarge the time for taking an appeal under R.R. 1:3--1--and he did not--the time for appeal would have expired on May 22, 1954, final judgment of conviction having been entered on January 22, 1954. The time within which a defendant must appeal has been held mandatory and jurisdictional. State v. Janiec, 6 N.J. 608, 80 A.2d 94 (1951).

Among the other contentions made on the former appeal was...