State v. Weeks.

• Decision Date: 30 August 1949
• Citation: 68 A.2d 426
• Parties: STATE v. WEEKS.
• Court: New Jersey County Court

68 A.2d 426

STATE

v.WEEKS.

Somerset County Court, Law Division.New Jersey.

Aug. 30, 1949.

Robert Stanley Weeks was convicted in Somerset County Court of Special Sessions, of several crimes, including assault with intent to kill, and he petitioned to have his sentence for not less nor more than 30 years for assault with intent to kill set aside so that he could be resentenced.

The Somerset County Court, Law Division, Arthur B. Smith, J.C.C., held that the sentence was illegal and that it could be corrected at any time to impose a sentence within the statutory limits.

Robert Queen, Trenton, for petitioner.

Leon Geofsky, Assistant Prosecutor of the Pleas, Somerville, for the State.

ARTHUR B. SMITH, J.C.C.

On January 3, 1941 the above named defendant, Robert Stanley Weeks, having waived indictment and trial by jury, stood before the Somerset County Court of Special Sessions charged, on separate allegations, with the following crimes:-(1) Attempt to escape, (2) Fornication and open lewdness, (3) Grand larceny, and (4) Assault with intent to kill. The defendant entered a plea of non vult with respect to the first of the above mentioned allegations and pleas of guilty to each of the remaining three allegations above named. On each of the first three allegations the defendant was sentenced to terms of not less than 2 and not more than 3 years in State's Prison, each of the sentences to run concurrently with the sentence imposed on the fourth of the above named allegations. As to the fourth allegation, that charging the defendant with assault with intent to kill, the defendant was sentenced to a term of not more than 30 and not less than 30 years in State's Prison. In conformity with the foregoing sentences, the defendant was committed to the New Jersey State Prison at Trenton where he has since remained.

It appears from the memorandum of law filed herein on behalf of the defendant that some time prior to January 31, 1949 he applied to the Mercer County Court, Law Division, for a writ of habeas corpus and that judgment denying his application for such a writ was entered March 16, 1949.

The defendant has now filed a petition with this Court, in which he alleges, in effect, that he was illegally sentenced to a term of not less than 30 and not more than 30 years on the fourth of the allegations above named for the reason that he had not been indicted either as a second, third or fourth offender nor had been notified that such a sentence would be imposed, and for the further reason that the sentence imposed exceeds the statutory maximum of 12 years as provided in R.S. 2:110-2, N.J.S.A., and fails to provide distinct minimum and maximum terms as required by R.S. 2:192-4, N.J.S.A. He prays that his sentence under the allegation charging him with assault with intent to kill be set aside in order that he may be resentenced in accordance with the provisions of Rule 2:7-13 of the new Rules of Criminal Practice.

An examination of the record gives no indication as to the reason or basis for the imposition of the sentence of not less than 30 and not more than 30 years in State's Prison. However, filed in the office of the Clerk of the Court with the allegation and marked as Exhibit ‘S-1’ in the cause, is a certified copy of certain records in the office of the Clerk of the Middlesex County Court of Quarter Sessions, which indicates that on December 23, 1932 the defendant, Robert S. Weeks, was convicted on his plea of guilty to an allegation charging him with breaking, entering and larceny, and on April 3, 1936 was further convicted on his pleas of guilty to two additional allegations, each charging him with breaking, entering and larceny. It is assumed, therefore, that the then presiding Judge of the Somerset County Court of Special Sessions may have imposed the sentence of not less than 30 and not more than 30 years upon the defendant on the assumption that the provisions of P.L.1940, Chapter 219, page 888, paragraph 2, amending R.S. 2:103-9, N.J.S.A. 2:103-9, authorized such a sentence. This amendment had then only very recently become effective (November 19, 1940).

The allegation now under consideration and on the defendant's plea to which he was sentenced does not charge the defendant with the commission of any previous crimes either constituting high misdemeanors or otherwise. Assuming that the sentence now complained of was imposed by the Court in reliance upon the provisions of R.S. 2:103-9, as amended, N.J.S.A. 2:103-9, (and there would seem to be no other basis for such a sentence) it appears that the sentence was illegal in that the defendant was not charged in any indictment or allegation with having been at least twice previously convicted of crimes constituting high misdemeanors under the laws of this state. Where there is a different and greater punishment for a subsequent offense, the settled law seems to be that an offense is considered a first offense unless the former offenses are not only proved on the trial, but also alleged in the indictment or allegation. Weeks v. State, 101 N.J.L. 15, 127 A. 345 (Sup. Ct., February 2, 1925); State v. Garton, 102 N.J.L. 318, 133 A. 403 (E. & A., May 17, 1926); State v. Burns, 135 N.J.L. 386, 52 A.2d 160 (Supreme Court, April 2, 1947), Id., 136 N.J.L. 601, 57 A.2d 1 (E. & A., January 29, 1948); State v. Lutz, 135 N.J.L. 603 and cases cited at page 605, 52 A.2d 773 (Sup. Ct., April 30, 1947).

Having reached the conclusion that the defendant's sentence was illegal for the reason hereinbefore stated, it becomes necessary to consider whether this Court is now vested with authority to correct the illegal sentence. Rule 2:7-13 of the present Rules of Criminal Practice, which became effective on September 15, 1948, provides as follows:-‘The court may correct an illegal sentence at any time. The court may reduce or change a sentence within 60 days from the date of the judgment of conviction.’

Are there any limitations or restrictions on the authority vested in the Court by the above mentioned Rule to correct an illegal sentence at any time?

In the foreword to the tentative draft of the new Rules Governing All of The Courts of New Jersey, the Chief Justice and associate Justices of the present Supreme Court stated: The Court is determined to avail itself, so far as practicable, of the Federal Rules of Civil Procedure (28 U.S.C.A.) and of Criminal Procedure'. It is assumed, therefore, that it was the intention of the Court to avail itself of the Federal Rules of Criminal Procedure as they had been interpreted, construed and applied by the federal courts, except insofar as the new State Court Rules may indicate a contrary intention. While there is no note indicating the source thereof under Rule 2:7-13 as contained in the Tentative Draft of the Rules, it is observed that the first sentence of this Rule is identical with Rule 35 of the Federal Rules of Criminal Procedure which became effective March 21, 1946, 18 U.S.C.A. The Notes of the Advisory Committee on Rules state that ‘The first sentence of the rule continues existing law.’ This, of course, refers to existing federal law. Counsel for the defendant has not referred the Court to any such law existing in the state prior to the promulgation of the new rule, and independent research has failed to disclose any such existing state law, except in those limited instances mentioned in R.S. 2:190-15 and 16, N.J.S.A. The statutory provisions last referred to would not be available to the defendant in the case now under consideration. An examination of cases in the federal courts indicates that prior to the promulgation of Rule 35 of the Federal Rules of Criminal Procedure, there evolved, over a period of years and stated in numerous federal cases, the rule that the court which imposed an illegal sentence could correct the same even after the expiration of the term of court during which the sentence was originally imposed, and that the proper procedure in such case was an application to the court in which sentence was imposed to correct the illegal sentence. Holiday v. Johnston, 313 U.S. 342, 349, 550, 61 S.Ct. 1015, 85 L.Ed. 1392 (June 2, 1941); Lockhart v. U.S., 136 F.2d 122 (6 Cir., June 4, 1943); U.S. v. Coy, 57 F.Supp....