State v. Weeks, A--59

• Decision Date: 01 February 1950
• Docket Number: No. A--59,A--59
• Citation: 71 A.2d 644,6 N.J.Super. 395
• Parties: STATE v. WEEKS. . Presented
• Court: New Jersey Superior Court — Appellate Division

Page 395

6 N.J.Super. 395

71 A.2d 644

STATE v. WEEKS.

No. A--59.

Superior Court of New Jersey Appellate Division.

Presented Feb. 1, 1950.

Decided March 1, 1950.

Robert Stanley Weeks, in propria persona, for the appellant.

Leon Gerofsky, Assistant Prosecutor of Somerset County, Somerville, for the respondent.

Before Judges JACOBS, DONGES and BIGELOW.

The opinion of the court was delivered

PER CURIAM.

The defendant appeals from an order entered in the Somerset County Court on September 27, 1949 which corrected a sentence imposed on January 3, 1941 and resentenced him.

The defendant pleaded guilty to separate charges of assault with intent to kill, grand larceny and fornication and lewdness and non vult to attempt to escape. On January 3, 1941 he was sentenced to serve a period of 'not more than thirty years nor less than thirty years' on the charge of assault with intent to kill; at the same time he received sentences of 'not more than three years nor less than two years' on each of the other charges, these to run concurrently with the thirty year sentence. Following his sentencing he was committed to the State Prison at Trenton where he is now confined. On March 16, 1949 the Mercer County Court denied an application by the defendant for a writ of Habeas corpus and no appeal was taken.

On May 11, 1949 the defendant, through counsel, filed a petition with the Somerset County Court for correction of sentence. This petition alleged that the thirty year sentence for assault with intent to kill was illegal since the maximum penalty under R.S. 2:110--2 was twelve years and requested that he be resentenced in accordance with Rule 2:7--13. The Somerset County Court determined that although the defendant was apparently a third offender (R.S. 2:103--9) he had not been formally charged as such and that the thirty year sentence was illegal. State v. Weeks, 5 N.J.Super. 505, 68 A.2d 426 (City Ct.1949). The Court set aside the thirty year sentence and imposed a sentence of 'not more than twelve years nor less than eleven years to be served consecutively to and not concurrently with' the three concurrent two to three year sentences and directed that the defendant be allowed credit for such time as he had served in State Prison beyond that required on the other sentences. The defendant appeals from the corrected sentence.

Rule 2:7--13 provides that 'The court may correct an illegal sentence at any time.' Although our Rule differs somewhat from Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. (cf. State v. Kowalczyk, 3 N.J. 231, 234, 69 A.2d 718 (1949)), the quoted language is taken from and identical with the first sentence of the Federal Rule. It represents a departure from our former practice (In re Janiec, 137 N.J.L. 94, 95, 58 A.2d 543 (Sup.Ct. 1948) certiorari denied 336 U.S. 939, 69 S.Ct. 742 (1949)) and affords to the defendant liberal opportunity to apply for correction of a sentence which, as here, was disclosed by the records to be illegal. The Federal decisions, both prior and subsequent to the adoption of Federal Rule 35, have held that in correcting an illegal sentence pursuant to the defendant's application, the Court, in the exercise of its discretion, may impose a new sentence within the limits of the applicable penalties provided by law. See Bryant v. United States, 8 Cir., 1914, 214 F. 51; Kitt v. United States, 4 Cir., 1943, 138 F.2d 842. Under these decisions the defendant has been held to be in no position to complain if, as a result of his application, the illegal sentence is replaced by a legal sentence of greater severity. See King v. United States, 1938, 69 App.D.C. 10, 98 F.2d 291, 295; Murphy v. Massachusetts, 177 U.S. 155, 160, 20 S.Ct. 639, 44 L.Ed. 711, 714 (1900).

The defendant contends that his application for correction of the illegal thirty year sentence afforded no authority to the lower Court to modify the valid two to three year concurrent sentences. We assume this to be so (State v. Kowalczyk, supra, 3 N.J. at page 233, 69 A.2d at page 719; however, the lower Court took no such action. It corrected the thirty year sentence but left untouched the three concurrent two to three year sentences which were validly imposed in 1941 and presumably have been fully served. Cf. Ekberg v. United States, 1 Cir., 1948, 167 F.2d 380, 387. The defendant next contends that, in correcting the illegal sentence, the lower Court had no authority to increase it, citing State v. White, 130 A. 470, 3 N.J.Misc. 1016, 1017 (Sup.Ct.1925) affirmed 103 N.J.L. 153, 134 A. 746 (E. & A. 1926) and Caprio v. Home of Good Shepherd of Newark, 91 N.J.L. 14, 102 A. 459 (Sup.Ct.1917) where our former Supreme Court pointed out that after the defendant had begun serving his sentence the trial court could not, on its own motion, increase his punishment. As the...