State v. Parker, A--711

• Decision Date: 04 October 1951
• Docket Number: No. A--711,A--711
• Parties: STATE v. PARKER.
• Court: New Jersey Superior Court — Appellate Division

Page 412

15 N.J.Super. 412

83 A.2d 535

STATE v. PARKER.

No. A--711.

Superior Court of New Jersey Appellate Division.

Oct. 4, 1951.

Harold Parker, pro se.

Eugene T. Urbaniak, Deputy Atty. Gen., for State.

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

JACOBS, S.J.A.D.

In 1936 the defendant Harold Parker was convicted for robbery and was sentenced to the New Jersey State Prison for the term of 8 to 15 years. In 1942 he received from its board of managers a parole embodying written terms and conditions which he expressly accepted. Under these terms and conditions he was liable to have his parole revoked and be returned to prison upon his conviction for crime committed after his release with provision that 'If you are returned to prison by revocation of parole, the time between your release and your return to prison will not be taken into consideration as part of your sentence and you will be required to serve the maximum sentence that was imposed upon you.' While on parole the defendant committed the crime of entering with intent to steal, was convicted and sentenced to three to five years therefor, and began serving this sentence at New Jersey State Prison on January 10, 1945. While on parole he had also committed the crime of assault with intent to rape and upon conviction had received a sentence of three to five years to run concurrently with the sentence for entering with intent to steal.

In February, 1945 the board of managers revoked the defendant's parole and, after he completed his three to five-year sentence, he was continued in confinement to serve the remaining portion of his original maximum sentence without credit for any time spent on parole or served under the three to five-year sentence. The defendant contends that this action was erroneous and has filed an original petition in this court seeking a ruling to that effect. Cf. Rule 3:81--10. Although serious questions have been raised as to the form and nature of the proceeding instituted by the defendant, they have not been considered because we are satisfied that the defendant's petition may be dismissed on the merits.

The board of managers had power to impose the terms and conditions of the parole which were accepted by and are binding upon the defendant. See R.S. 30:4--106.1, N.J.S.A.; R.S. 30:4--108, N.J.S.A.; In re Macejka, 10 N.J.Super. 393, 76 A.2d 843 (Cty.Ct.1950) ; Ex parte Gordon, 105 Vt. 277, 165 A. 905 (1933); People ex rel. Jankowski v. Morhous, 273 App.Div. 929, 77 N.Y.S.2d 401 (1948); 67 C.J.S., Pardons, § 23, pp. 613, 614 (1950). And when parole authority was recently transferred to the newly created State Parole Board it was fully vested with jurisdiction over the defendant and power to effectuate the terms and conditions of his parole. R.S. 30:4--123.5, N.J.S.A.

The terms and conditions of the defendant's parole clearly contemplated that upon his return to prison by revocation of his parole he would serve the unexpired term of his original maximum sentence without any credit for the time spent by him out of confinement on parole. The remaining question...