State v. Patton
| Decision Date | 04 October 1962 |
| Docket Number | No. A--124,A--124 |
| Citation | 184 A.2d 655,76 N.J.Super. 353 |
| Parties | The STATE of New Jersey, Plaintiff-Respondent, v. James J. PATTON, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
James Joseph Patton, appellant, pro se.
Norman Heine, Camden County Pros., attorney for respondent, Stephen M. Gretzkowski, Jr., Asst. Pros., on the brief.
Before Judges GOLDMANN, FREUND and FOLEY.
The opinion of the court was delivered by
FOLEY, J.A.D.
Defendant appeals from denial by the Camden County Court of his motion to compel the immediate trial or, alternatively, dismissal of an indictment lodged against him charging armed robbery.
The underlying facts are these: On March 6, 1951 defendant allegedly committed an armed robbery of a business establishment in Camden and escaped. On March 19, 1951 he was arrested in Philadelphia, after an unsuccessful attempt to hold up the Hamilton Savings and Loan Association in that city. Allegedly this was his second attempted holdup of the savings and loan association, the first having taken place on March 9, 1951.
It is represented by the State that defendant was sentenced to confinement in the Eastern State Penitentiary in Philadelphia for a maximum term which was to expire on March 28, 1959. He became eligible for parole March 28, 1955 but declined to file an application therefor.
On May 3, 1951 the Camden County grand jury indicted defendant for the attempted robbery committed there, and a warrant was lodged against him at Eastern State Penitentiary.
In March 1958 the Camden County Prosecutor was notified by the United States Department of Justice, United States Penitentiary, Atlanta, Georgia, that in addition to the Camden charge it held detainers from Birmingham, Alabama, for robbery, Upper Marlboro, Maryland, for robbery with deadly weapon, and Northampton, Massachusetts, for armed robbery.
The State is unable to inform us concerning defendant's transfer from Eastern State to the federal prison at Atlanta where he is presently confined. In any event, he is scheduled for release therefrom on March 7, 1966.
It appears that on three occasions, July 1959, April 13, 1961 and June 8, 1961 defendant requested the prosecutor's office to bring him to trial on the Camden County indictment. Each time he was informed that his request was denied and that disposition of the matter would be deferred until the expiration of the federal sentence.
In July or August 1961, defendant filed an application for a 'writ of mandamus' entitled in the 'Court of Oyer and Terminer,' directing Camden County to show cause why he should not be granted a speedy trial or, alternatively, have the indictment dismissed.
We pass the obvious misnomers of court and proceeding and consider the application of the merits.
The basis of the opposition of the State to defendant's application is: (1) 'defendant himself caused the delay by crimes that he committed after the Grant store (Camden) incident,' (2) 'doubt exists as to whether the federal authorities would permit the prisoner to stay in our county jail pending assignment of counsel and investigation and preparation for defense by said counsel,' and (3) the grant of defendant's request would involve substantial expense to the State.
At the outset it is well to bear in mind that defendant does not seek in this proceeding the dismissal of the indictment for the reason that the State has not given him the speedy trial guaranteed by N.J.Const.1947, Art. I, par. 10. Rather, the relief sought is an order compelling the State 'to bring the defendant into court and either try him or dismiss the indictment.' Thus, the application in effect is based upon R.R. 3:11--3(b) (formerly R.R. 2:12--4(b)) which provides:
In State v. Smith, 10 N.J. 84, 92--94, 89 A.2d 404, 408 (1952), the Supreme Court found occasion to discuss the common law background of R.R. 3:11--3(b), as exemplified by cases such as Apgar v. Woolston, 43 N.J.L. 57 (Sup.Ct.1881), and State v. Hickling, 45 N.J.L. 152 (Sup.Ct.1833). In Smith, the court said:
'These cases are clearly authority for the proposition that under common law as it existed in this State the court is without power to dismiss an indictment at the instance of a party and that its power is limited to a discharge from imprisonment or an order that 'the defendant shall be discharged on his own recognizance.' It was the above-quoted decisions that resulted in the applicable statutes being amended in the Revision of 1898, L.1898, c. 237, sec. 53, in which the language 'the defendant shall be discharged on his own recognizance' was introduced in place of the language 'he shall be discharged from his imprisonment.' A similar interpretation was placed upon the provisions of section 52 of the Habeas Corpus Act, Revision of 1877, R.S. 2:188--1, N.J.S.A., presently superseded by Rule 2:12--4. Cf. Patterson v. State, 50 N.J.L. 421, 14 A. 125 (E. & A. 1888).
For the purpose of clarity and to emphasize that the provisions of this rule are consistent with the commonlaw decisions of this state, Rule i:12--4 (now Rule 3:11--3(b)) is repeated here:
'(a) Upon motion of the prosecuting attorney, the court may order a Nolle prosequi of an indictment or accusation. Such a Nolle prosequi may not be filed during the trial without the consent of the defendant.
(b) At any time after six months following the return of an indictment or the filing of an accusation, the Assignment Judge may direct that the trial of the indictment or accusation shall be moved upon a day specified. Upon failure of the prosecuting attorney to comply with such order the court may order the indictment or accusation dismissed, which dismissal shall be the equivalent of a judgment of acquittal.
(c) If there is unnecessary delay in presenting the charge to a grand jury or in filing an accusation against a defendant who has been held to answer...
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