State v. Kowalczyk
| Decision Date | 12 December 1949 |
| Docket Number | No. M--26,M--26 |
| Citation | 3 N.J. 231,69 A.2d 718 |
| Parties | STATE v. KOWALCZYK. |
| Court | New Jersey Supreme Court |
Mark Townsend Jr., Deputy Attorney General, argued the cause for the petitioner (Theodore D. Parsons, Attorney General, attorney).
Joseph Tomaselli, Camden, argued the cause for the respondent (Malandra & Tomaselli, Camden, attorneys).
The opinion of the court was delivered by
The defendant, Kowalczyk, was convicted on November 19, 1948, in the Camden County Court after a three day trial on an indictment charging false swearing before the grand jury of the county. He was thereupon sentenced on November 22, 1948, to six months in the county jail on each of the two counts in the indictment, the sentences to run consecutively.
On appeal to this Court the judgment of conviction below was affirmed on October 24, 1949, 3 N.J. 51, 68 A.2d 835, and our mandate issued accordingly. When the matter came before the County Court on the surrender of the defendant the judge, over the objection of the deputy attorney general representing the State, entered an order suspending the sentence originally imposed and placed the defendant on probation for one year. The present motion contests the power of the trial court to change the sentence in the light of our mandate.
At common law the power of a trial judge to alter a sentence expired with the term of court at which the sentence had been imposed, State v. White, 103 N.J.L. 153, 134 A. 746 (E. & A. 1926); see also 1 Chitty on Criminal Law, 721. This rule, however, was never a satisfactory one because the extent of the judge's power in the individual case was variable, depending upon whether the judgment was entered early or late in a term. Accordingly the Legislature, after various experiments, in 1928 (P.L. 1928, c. 231) fixed thirty days from the date of conviction as the time within which the judge might act in place of the indefinite rule of the common law, R.S. 2:190--15, N.J.S.A. With the abolition of three terms of court a year on the promulgation of our new Rules and the substitution therefor of an annual term commencing each September (Rules 1:1--1; 2:2; and 3:102--2, Rule 2:7--13 was adopted extending the power of the judge to resentence a defendant 'within 60 days from the date of the judgment of conviction.'
At common law, moreover, an affirmance on an appeal constituted another restriction on the power of the trial court to alter or amend the judgment in a criminal case. The law in this State on this point was summarized by Chancellor Oliphant in Re Caruba, 142 N.J.Eq. 358, at page 363, 61 A.2d 290, at page 292 (Ch. 1948) on an application for a review of a criminal contempt. In re Caruba, 139 N.J.Eq. 404, 51 A.2d 446 (Ch. 1947), affirmed 140 N.J.Eq. 563, 55 A.2d 289 (E. & A. 1947): ...
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State v. Robinson
...that history is essential to understanding the limitation on that power and to determining what 'at any time' means. In State v. Kowalczyk, 3 N.J. 231, 69 A.2d 718 (1949), Chief Justice Vanderbilt reviewed that history. Kowalczyk had been sentenced on November 22, 1948. He appealed and the ......
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State v. Culver
...131 N.J.L. 257, 258, 36 A.2d 213 (Sup.Ct.1944); and see State v. Benes, 16 N.J. 389, 394, 108 A.2d 846 (1954); State v. Kowalczyk, 3 N.J. 231, 233, 69 A.2d 718 (1949). The availability of the rule for the stated purpose has been recognized frequently. In re Kershner, 9 N.J. 471, 476, 88 A.2......
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State v. Robinson
...a criminal sentence terminated with the expiration of the court term in which the sentence was originally imposed. State v. Kowalczyk, 3 N.J. 231, 233, 69 A.2d 718 (1949). That principle was first embodied in L.1898, c. 237, § 55, which provided that a court would have the power to modify a......