State v. Roberts

• Decision Date: 24 September 1986
• Citation: 515 A.2d 799,212 N.J.Super. 476
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Glenn ROBERTS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 476

212 N.J.Super. 476

515 A.2d 799

STATE of New Jersey, Plaintiff-Respondent, v. Glenn ROBERTS, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Aug. 12, 1986.

Decided Sept. 24, 1986.

Alfred A. Slocum, Public Defender, for defendant-appellant (Fredrick P. Niemann, Designated Counsel, Holmdel, of counsel and on the letter brief).

W. Cary Edwards, Atty. Gen., for plaintiff-respondent (Carol M. Henderson, Deputy Atty. Gen., of counsel and on the letter brief).

Before Judges DEIGHAN and SCALERA.

The opinion of the court was delivered by

DEIGHAN, P.J.A.D.

Pursuant to a plea agreement, defendant Glenn Roberts was convicted for contempt in violation of N.J.S.A. 2C:29-9, a crime of the fourth degree, for purposely or knowingly disobeying a judicial order. He was sentenced to a term of one year probation on condition that he serve 69 days in the county jail with credit for time previously served. ¹ Probation was also on condition that defendant make restitution to the County of Cumberland in the amount of $1,572.19, the cost of defendant's extradition from Wyoming. A $25 Violent Crimes Compensation Board penalty was also imposed. At the time of the plea agreement defendant reserved his right to appeal from the denial of his motion to dismiss the indictment on the ground that the Superior Court, Law Division lacked jurisdiction over the defendant because, at the time of the offense, he was in fact a juvenile. The facts are not in dispute.

Defendant was indicted by the Cumberland County Grand Jury under Indictment No. 588-78 for breaking and entering in violation of N.J.S.A. 2A:94-1 (count one) and larceny in violation of N.J.S.A. 2A:119-2 (count two). Both violations were committed on August 31, 1978. He was also indicted under Indictment No. 864-79 for larceny committed on June 8, 1979 in violation of N.J.S.A. 2A:119-2. On September 27, 1979 a bench warrant was issued for defendant for failure to appear before the Superior Court, Law Division on Indictment No. 864-79; on October 10, 1980 a bench warrant was also issued for defendant for failure to appear before the court on Indictment No. 588-78.

In 1979, when defendant was arrested and charged with breaking and entering and larceny under the two indictments he was charged as an adult because he lied to the police and said he was 18 years of age. The bench warrant lists defendant's date of birth as August 5, 1960, however, his actual date of birth, which was not established until a motion to dismiss in June 1983, is August 5, 1961. On September 27, 1979, when defendant failed to appear before the court to enter a plea to Indictment No. 864-79 he had left the State and had gone to Oregon allegedly to visit his sick father. However, instead of returning to New Jersey, defendant went to Wyoming where he was again arrested and convicted of breaking and entering and larceny. On April 15, 1983 defendant was extradited to New Jersey from Wyoming and on May 10, 1983 he was indicted under Indictment No. I-0238-5-83 for bail jumping on September 27, 1979 in violation of N.J.S.A. 2C:29-7.

On June 13, 1983, defendant moved to dismiss Indictment Nos. 588-78 (breaking and entering and larceny) and I-0238-5-83 (bail jumping). He argued that he was a juvenile when the offense charged in Indictment No. 588-78 was committed and therefore the court had no jurisdiction over him. He further argued that since he was improperly charged as an adult, Indictment No. I-0238-5-83 (bail jumping) must be dismissed because he had no obligation to appear before the Superior Court, Law Division for the underlying indictment. He thus contends there was no jurisdiction to charge him with bail jumping in violation of N.J.S.A. 2C:29-7. The trial court dismissed Indictment No. 588-78 (breaking and entering and larceny) and transferred the matter to the Juvenile Division for prosecution but denied his motion to dismiss Indictment No. I-0238-5-83 for bail jumping. On July 7, 1983, Indictment No. 864-79 (larceny) was also dismissed and the matter transferred to the Juvenile Court.

On August 4, 1983, pursuant to the plea agreement, defendant retracted his not guilty plea and entered a guilty plea to Indictment No. I-0238-5-83 which was amended to charge him with contempt of court in violation of N.J.S.A. 2C:29-9. At sentencing defendant admitted he was aware that there were criminal charges outstanding against him; that he knew he was not permitted to leave the State without permission, and that he made no attempt to return to New Jersey nor did he inform the court of his whereabouts or make any attempt to ascertain the status of the charges against him.

On appeal defendant contends that since he was a juvenile at the time of the violation, his conviction for contempt must be reversed because the court had no jurisdiction over him on the underlying charge of breaking and entering and larceny. He contends that "a defendant may ignore a court order with impunity if the court issuing the order lacked jurisdiction" citing In re Tiene, 17 N.J. 170, 177, 110 A.2d 170 (1954) and cases from other jurisdictions. We disagree.

I.

The general rule is firmly established that a court does not possess the right or power to punish for contempt in disregard or in violation of its order which was entered without jurisdiction over the subject matter or the parties or without power or authority to enter the particular order. Annotation, "Right to punish for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous," 12 A.L.R.2d 1059, § 3 at 1067 (1950). Therefore, even though no appeal has been taken from the underlying action, lack of jurisdiction for violation of an order in that action may be raised by a contemnor on appeal from a judgment of conviction on the collateral contempt proceeding or upon application for a writ of habeas corpus to test the validity of the contempt. Ibid. In other words, on a criminal contempt conviction based upon violation of a court order, in this case an order for bail, lack of jurisdiction of the original order may be raised on appeal from the contempt conviction.

The annotation, which cites a plethora of cases from other jurisdictions, is cited with approval in Tiene, 17 N.J. at 178, 110 A.2d 93, but reference to the annotation is dictum because the Supreme Court found that the trial court had jurisdiction and affirmed the contempt. Tiene was a criminal contempt proceeding. 17 N.J. at 177, 181, 110 A.2d 93. A distinction must be made between "criminal" contempt, which is a proceeding to maintain the dignity of the court, and a "civil" contempt, which is a proceeding merely to compensate the plaintiff for damage suffered by way of defendant's violation or disregard of the order. 12 A.L.R.2d, § 5 at 1077. Although the New Jersey Court Rules distinguish between criminal and civil contempt, ² generally our case law has not made this distinction. Most New Jersey cases, with the exception of Tiene, appear to have involved "civil" contempt. Kempson v. Kempson, 63 N.J.Eq. 783, 784, 52 A. 360 (E. & A. 1902); Dodd v. Una, 40 N.J.Eq. 672, 5 A. 155 (E. & A. 1885) (cited in Tiene ); Salmon v. Salmon, 88 N.J.Super. 291, 314, 212 A.2d 171 (App.Div.1965); Forrest v. Price, 52 N.J.Eq. 16, 23, 29 A. 215 (Ch. 1893), aff'd 53 N.J.Eq. 693, 35 A. 1130 (E. & A. 1902).

This distinction between "civil" and "criminal" contempt is important because other courts have recognized an exception to the general rule. In "criminal" contempt proceedings, to maintain the dignity of the court and to preserve existing conditions pending a determination of the court's jurisdiction, a court order must be obeyed until the jurisdictional question may be determined. Annotation, supra, 12 A.L.R.2d, § 5 at 1077, citing United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947).

In United Mine Workers, the United States Supreme Court held that a District Court's order must be obeyed if it had the power to decide whether it was authorized to issue it, even if it is later held that it was not so authorized. The court distinguished between criminal and civil contempt and determined that if there is criminal contempt and the order is later set aside for lack of jurisdiction, the contempt conviction will not fall. Id. at 292-296, 67 S.Ct. at 695-697.

Orders outstanding or issued after [the injunction] were to be obeyed until they expired or were set aside by appropriate proceedings, appellate or otherwise. Convictions for criminal contempt intervening before that time may stand. [Id. at 294, 67 S.Ct. at 696; Emphasis supplied].

Accord LaTrobe Steel Co. v. United Steel Workers, etc., 545 F.2d 1336 (3 Cir.1976); United States v. Professional Air Traffic Controllers, etc., 524 F.Supp. 160, 165 (D.D.C.1981); see Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 827 (5 Cir.1976); but cf. United States v. Thompson, 319 F.2d 665, 668 (2 Cir.1963) (mandate which is beyond jurisdiction of issuing court is void and court may not punish for its violation). This exception is applicable even if the underlying order is later found to have infringed on constitutional rights. Norman Bridge Drug Co. at 827. The rationale for this exception is stated in United States v. Shipp, 203 U.S. 563, 573, 27 S.Ct. 165, 166, 51 L.Ed. 319 (1906): "Until [the court's] judgment declining jurisdiction should be announced, it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition [for a writ of habeas corpus]."

Although the New Jersey Courts have not distinguished between "criminal" and "civil" contempt in relation to jurisdiction of the original proceedings, there is some support for such a distinction in the concurring opinion of Dodd v. Una, supra. In Dodd, upon which the Tiene court relied, the majority stated that a party in a contempt...