*1 JERSEY, PROSECUTOR-RESPOND THE NEW STATE OF LAIRD, ENT, DEFENDANT-APPELLANT. v. ROBERT Argued September 1957. November 1957 Decided *3 Miller, Jr., Mr. John L. the cause for argued appellant Bauer, Bdward J. attorney). {Mr. Bollemann,
Mr. Christian Deputy Attorney-General, Bichman, Jr., the cause for the State argued Grover C. {Mr. Attorney-General, attorney). of the court delivered opinion was 29, J. November Court Municipal
Heher, of the of Camden, defendant City was convicted on a com- plaint on October 29 he charging prior did operate a motor vehicle while under the influence of intoxicating :4-50, violation of B. 8. 39 liquor as amended L.
c. and was $200 fined thereupon assessed costs of $25; the fine and costs were forthwith paid and the defend- ant This, fact discharged. assumption of defendant was a first offender, in accordance with the frame itself. complaint Action was also taken to effectuate provision statute that one self-executing so offend- *4 also, shall a offense, first ing “forfeit his right operate a motor vehicle over the of this a highways State for period of two from the years date of his conviction.” 18, some 50
January days thereafter, 19j>7, defendant “was again apprehended” “informed that inasmuch as he had been convicted a like in 1947, October of he [of offense] a offender,” second and so was directed to in appear 28, on municipal 1957 for January “re-sentencing.” couiy named, On day pursuant to a of a finding offense- previous
302 defendant, on the class, the court resentenced of the same 1956, imprisonment conviction of November summary license was and his driver’s for a term of three months the manda- both years, for a of ten period declared revoked the cited violation” of tory consequences “subsequent is couched license-forfeiture provision section 39:4-50. The offense; only period a first in same terms as for fine; for a different. There no provision revocation is for a only “subsequent directs imprisonment statute violation.” admitted; seems and it
The earlier of the act is breach known to this offense did not become to be fact the conviction of until sometime after municipal court 1956 and thereunder. November of the municipal Court affirmed the judgment County revised; and defendant’s appeal court as thus we certified Division, our own motion. Appellate the modus in operandi No is made as to question to the of a consequences “subsequent” offender subjecting a punitive violation of the act. The concerns proceeding nature; in and there is the same offense, gwosf-criminal here as in criminal cases for the essential strictly regard individual civil to secure the designed liberties rights Park Reser Board Forest arbitrary action. State against v. 87 N. J. L. 476 McCloskey, vation Commissioners & 91 N. J. 212 A. Rodgers, (E. Ct. State v. L. 1915); (Sup. Wallerius, 99 N. L. Ct. 1924); Watt J. 370 1917); (Sup. v. Rosenblum, 1924), 100 N. J. L. 240 Ct. v. (Sup. State Rowe, 125 A. v. 1925); affirmed N. J. L. & State (E. J. L. 122 N. J. L. 466 1935), Ct. affirmed (Sup. N. & 128 N. J. L. 246 1939); Hagaman, A. Kruttschnit (E. Wilkinson, 133 J. L. 176 1942); Sharkey Ct. (Sup. its sense early Ct. A in technical 1945). quasi-crime (Sup. involuntarily”; is “the act of or evil its damage doing mis all not crimes or embraces offenses enlarged usage demeanors, crimes; in the nature of to the prefix but certain sense or resemblance, noun degree; signifies “which have not been public a class of offenses against
303
declared crimes, but
the
or local
wrongful against
general
is
public which it
should
proper
repressed
punished
be
or
by forfeitures and penalties.” Wiggins
Chicago,
City
v.
Snure,
"Quasi-criminal” is not an label. The classifica- empty tion is in no sense has the safe- illusory; reference to guards inherent nature of the offense, very puni- tive quality that characterizes the the re- proceeding, quirements of fundamental fairness and essential justice the accused.
The basic rule is that where the repetition criminal action renders the accused liable to different and greater punishment, offense is treated as a subsequent first offense unless the earlier crimes are included in the specification of the trial; offense laid proved on the the usual practice prior convictions allege indictment and to submit the issue factual thereby arising to the jury; and this course sine is a non save where qua the statute makes other adequate provision for the inquiry. The procedure is rooted in the fundamental common-law principle that in penal shall proceedings accused be clearly meet; informed he is called charge upon and this of necessity involves the elements of aggravation which under the statute crime enlarged grade . Lutz, enhancing punishment J. L. State Burns, 605 (Sup. Ct. 1947). To the same effect: State *6 A. v. 1948); Myers, J. L. 601 & State (E. 136 N. Rowe, v. 1947); supra. N. L. 288 State 136 J. (Sup. Ct. itself, :T-50, 39 Here, the statute section provides violation of who has been convicted of a previous one in the as a second offender need not be section charged him the punishment in order to render liable to complaint a Nevertheless, it is basic laid down for a second offense. accused be principle procedural jurisprudence and offense, a notice before sentence as for second given, the prior an to be heard as to the commission of opportunity a punishment pro offense made to the precondition greater vided for its repetition. has completely
But it is the defendant urged “[a]fter him as a was imposed upon executed sentence which validly case, the the court over shown the' record of the power exhausted”; and this was so here when sentence is [the] sentence as for a second offense imposed. hand, contends that Attorney-General, on other under sentenced as a first offender R. person S. “illegally re- 8:7-11,
39:4-50 under the of R. R. be may, authority sentenced as a second offender even after the commencement sentence”; of the execution of his and that although illegal after it can be corrected even has been sentence “illegal executed,” had here not completely original served when it was in that two months “only enlarged driver’s license had two-year suspension of [defendant’s] time “even at the of his absent elapsed resentencing,” the Director of the Division of Motor formal resentencing, revoke a driver’s license in accordance with may Vehicles mandate the trial court’s failure statutory despite Ferber, 16 so,” do MacKinnon v. N. J. 390 Super. citing denied J. 613 certification 8 N. 1951), (1952). (App. Div. It rule common law early was the at from times that in cases the record of the court was subject criminal amendment at time the term in which the any during judg rendered, ment was and the in this included practice regard term, the sentence but not to impose revision of during a new and different sentence after increasing punishment
305
even
the execution of the sentence had
begun,
during
at
A
is void
common law,
term.
so
judgment
providing
and the
remains in force. Commonwealth
original judgment
Weymouth,
2 Allen
144
Jud. Ct.
(Mass.)
(Sup.
1861);
Foster,
Commonwealth v.
legally danger guarded follow the second conviction which is the real against if, judgment the Constitution. But after has been conviction, judgment on the rendered sentence criminal, again executed he can be sentenced on that eon- punishment, viction to another and different or to endure the same punishment time, any a second is the constitutional restriction value?” There, fine and imposed imprisonment, although the statute permitted a fine or only imprisonment, and the fine was and the was that paid; court holding not, could even the term, during modify judgment provide in lieu imprisonment sentence, of the earlier and the judgment been executed in full having satisfaction of one of the alternative penalties law, power the court was exhausted. rule general elsewhere is that where there has been
a general verdict of guilty indictment upon containing several counts for distinct offenses, and the defendant has been sentenced some upon of the counts and he imprisoned, cannot, at term, a subsequent be sentenced anew an- upon other indictment, count the same even if the first sentence Foster, was erroneous. Commonwealth v. supra. And a this is so as to an increase attempted fortiori of the punishment after the has been judgment executed. fully The sentence is the final case, in a criminal judgment the end ordinarily case, save as provided otherwise. Commonwealth, Fine v. At supra. law, common single “[A] sentence exhausts the power of the court to punish the offender, after the term is ended or the has judgment gone ** into operation, State v. Addy, J. L. Ct. Dixon, (Sup. 1881), J., Ex citing parte Lange, supra; *8 Foster, Commonwealth v. supra. Where the sentence was the court which illegal, rendered the could judgment not vacate or render anew after the judgment term at which it was pronounced had ended or the had judgment executed and the punishment borne. partly State v. Gray, 37 N. J. L. 368 (Sup. 1875), Ct. Van Syckel, J. See also v. Home Caprio Newark, Good Shepherd 91 J. N. L. of of 14 While, Ct. (Sup. 1917); State v. 103 N. J. L. 153 &(E. 1926). A. great weight sustains the rule authority
where a valid sentence has been put into execution, the trial
307 court amend, cannot or revise it in modify, either way, any or after the term or session court at during which the sentence was pronounced. in this Any attempt direction ineffectual and the wholly sentence stands. original 168 A. L. R. 707. 706,
And the whole or
of a fine
partial payment
pursuant
to a valid sentence is tantamount
to commitment
defendant within the sense and
of the rule
meaning
forbidding
amendment or modification of a valid sentence in a criminal
case after the defendant has been committed.
Yavorsky
States,
Esola,
United
R. R. 8:7-ll provides the court (a) “may correct at time,” illegal any reduce (b) “may a sentence within change 60 days from the date of the conviction, but not judgment thereafter.” This rule of modified court the common-law limitations in this regard; but it was not to authorize an designed enlargement punishment after the sentence had imposed been satisfied and the defendant The rule is discharged. necessarily assessed in the context be of the basic civil rights defendant.
In the federal jurisdiction, amendment of sentence, even after its execution has begun, permissible provided Benz, is not punishment augmented. United States v. There, supra. Mr. Justice Sutherland said: “The general rule is that decrees and judgments, orders are within the control of court the term during at which were they made”; they “are then deemed to be fin the breast of the them, court’ making subject amended, to be modified, court”; or vacated the rule “is not confined to civil cases, but applies criminal cases as well, provided the be not punishment augmented,” Ex citing parte Lange, *9 that term supra; “distinction the court the same during amend a sentence so as to may punishment, mitigate it, but not so as increase to not based upon ground that the court has lost in control of the the latter judgment case, but to increase the upon penalty ground to the defendant subject to double for the same punishment offense in violation of 5th Amendment to the Constitu- tion, -which shall no ‘be for the provides person subject same offense to be twice in This is basis put jeopardy.’ of the in decision Ex parte Lange, supra.” Justice Suther- land Justice Miller’s view that adopted “Constitution was as much the criminal designed prevent to from being twice punished for the same offense as from twice being it”; tried for and he repeated what was there said by way application case, to the facts of that principle where the defendant had the line and had paid undergone five one days first year’s imprisonment imposed: “Can the court vacate that entirely, without judgment it, reference what has been done under another impose punishment on on that same prisoner verdict? To do punish so is him twice the same offense. He is not in only put jeopardy twice, but to actual put punishment twice for same The Lange doctrine was thing.” thus in reaffirmed its essential content of constitutional principle immune quite legislative judicial impairment. Where the prisoner sentenced to imprisonment under a conviction on a state statute enacted after the offense was committed, and therefore not constitutionally applicable to offense, the sentence “was not but void, voidable,” and prisoner, his writ of error to a prosecuting reversal judgment, “voluntarily accepted result” and so came within the rule that “a convicted person cannot by his own act avoid the jeopardy which he stands, and then assert as a bar to if, subsequent jeopardy”; said Chief Euller, Justice the “voidable” sentence “had been complied with he could not have been punished for the again same offense,” but “as the sentence was set original aside at his own instance he could not that he had been in allege legal *10 Massachusetts, reason thereof.” Murphy jeopardy by L. 711 155, 639, (1900). 177 20 Ct. 44 Ed. U. S. S. and the Chief the of was Lange applied; doctrine
Again
in
the court
a case which
Justice stressed that “this
not
sen
a
or additional
undertook to
in invitum second
impose
offense,
for
one sentence
tence
the same
or to substitute
for
“availed himself of
another,”
rather that the defendant
but
that another
have the first sentence annulled so
his
to
right
statute found
rendered,” under a prior
sentence
be
might
contention.
in
to the defendant’s
force,
to be still
contrary
172,
175
made Brown v. New
U. S.
Jersey,
Reference was
to
the
77,
tence which
been
As the
the court
thus executed so
be a full
was
as to
satisfaction
of
penalties
law,
power
one of the alternative
of the court
unimportant
was at an end.
It
that
had
the fine
not been
treasury;
paid
clerk,
into
covered
it had been
to the
the officer
it,
petitioner’s
rights
of the United States authorized to receive
and
depend upon
subsequently
did not
what
officer
did with the
“subsequent
money”;
amendment of the sentence could not avoid
judgment,
attempt
accomplish
satisfaction
and the
to
nullity”;
“(s)ince
provision
end was
and
valid
one
alternative
original
satisfied,
petitioner
has
is entitled
be
to
freed
further
restraint.”
States,
And in a
case,
more recent
Bozza v. United
U. S.
S. Ct.
The Supreme Mr. by Black, Justice said: “It is well established that a sentence which does not with comply the letter the criminal statute which authorizes it is so erroneous that it be aside may set on appeal,” citing Murphy Massachusetts, “or in supra, habeas corpus proceedings,” Bonner, In citing re 242, U. S. S. Ct. 38 L. Ed. 149 (1894); but “in those cases it was recognized that an excessive sentence should corrected, be even the though prisoner had already served part term, of his not abso by lute discharge prisoner, but by appropriate amend ment of the invalid sentence the by court of original jurisdiction, at least the term during court which * * * the invalid sentence was imposed. In the light cases, of these the fact has been twice [defendant] before the judge for and in a sentencing federal place detention the five during hour interim cannot be said to constitute double jeopardy as we have heretofore considered it.” Answering contention that “correction of this sen- tence so as make it lawful to increases his punishment,” it was “If said: this inadvertent error cannot be corrected in the manner used here the trial court, no valid and * * * enforceable sentence can be imposed at all. This guilt that a whose prisoner, Court has the ‘doctrine rejected verdict, established, escape punishment a regular an error in passing because the court committed altogether, ” Bonner, In re supra. citing sentence/ sentence, the omission Thus, an “inadvertent error” in day on the very fine of was corrected mandatory $100, court, sentence, session of day’s presumably during and the had actually before execution of begun, escape alternative would have been prisoner’s seeming Three dissented on from Justices “punishment altogether.” in the and the instruc- the “evidence case ground us to sustain the tions seem to jury inadequate given three, conviction,” and one of the Mr. Justice Rutledge, conclusion, their he would reserve expres- said that view of of the sentence.” sion of opinion concerning “legality But that is not this case. in the Appeals,
In a later case Second Circuit Court of Rosenstreich, 204 2d 321 F. (1953), United States defendant was sentenced June 1952 on conviction for $1,000, a fine of to be within (a) paid conspiracy pay fine and and to stand committed until week, paid, for one execution to be imprisoned year, suspended to be (b) 1952, defendant placed probation; July to be the sentence and resentenced defendant by vacated judge $10,000 the fine (2) by (1) increasing imposing *12 term for a of one less ten with year days imprisonment of execution and as before. The probation suspension judg- ment was reversed. Prank said:
Judge that, double-jeopardy provision “It is well settled thanks to the Amendment, may (a) a federal court not a of the Fifth increase imprisonment, begun, of once execution of the has sentence sentence pay fine, imposed (b) a a after sentence to the fine first has that, purpose least, probation paid. for this been We think at * * * an ‘authorized which has called mode of mild and * * * ambulatory punishment’ equivalent should be ‘deemed the imprisonment. probationary period judge of A starts when im- the * * * poses imposed that sentence. We think sentence on Accordingly, a June 30 must be considered unit. it had been July part judge’s day, and the action on that executed before by augmenting beyond powers.” fine, his was lawful Hand, Judge concurring, doubt Augustus suggested that defendant started the execu probation “placing sentence,” of tion his since “three of the Supreme Justices Court have that indicated there is no constitutional to bar a sentence if has started and later been increasing probation revoked and the did reach the constitu majority opinion not States, issue,” tional Roberts v. United 320 U. S. citing 64 Ct. S. L. Ed. but “here it (1943), appears defendant’s had counsel in court with money increased,” which the fine before it pay and “the readiness and the fine ability pay absent formal (even act of tender) should as the its operate of equivalent payment.”
Here, sentence conformed to the statu original tory offense; indeed, command for a first if the defendant then were sentenced aas second offender on record then made, the sentence would have been a It was and nullity. is a jurisdictional to sentence precondition for a “subsequent” offense that there be a of a conviction an prior finding kind, offense of like on proof almnde adduced at a hearing on notice. And thus it is at the imposed valid, outset was made; record and upon payment fine, the sentence was fully executed and the power of the court exhausted. Such is the of the New principle case Jersey of State Gray, where an supra, excessive sentence of imprisonment was held to be “manifestly illegal” and not subject judicial correction by resentence “after the term at which it ended, was pronounced is or the judg executed, ment is and the punishment partly borne.” See Massachusetts, Murphy supra.
Once the sentence has been executed, it would seem that on the plainest principles justice jurisdiction of the court to increase the is at punishment end, this in despite statutory policy enlargement penalty prior offense of the same class. one could Certainly, not be resentenced under the Criminal Act, N. J. S. Habitual 2A :85-8 et he seq., after had served his sentence on a conviction not within that brought statute. N. J. 2AS. :85-13
313 provides if sentence,” “at before con- anytime, prior is viction made to the shall file appear, county prosecutor an conviction, accusation the and there charging previous then shall abe on notice determine the fact. hearing to But this can be had before sentence. proceeding only act so in declares terms. explicit word,
In a the elements under of offense “subsequent” B. same; S. 39:4-50 are the of the trans- repetition gression aggravates guilt augments punishment. And the under defendant was no duty to disclose earlier conviction a like offense, of no more than he was to confess his offense laid obliged guilt “subsequent” to him.
The second B. provision of 8:7-11 authorizes the B. reduction of the sentence within the imposed time thus prescribed, rule a sentence modifying general may not be altered after it has execution, into even put of way first, mitigation punishment; permitting time,” correction of an “at sentence taken “illegal” any Procedure, from Buie the Federal Rules Criminal cannot interfere with the fulfillment of civil basic rights. Culver, State J. 495 concerns the (1957), reduction of an life under N. 5-12, J. 2A: 8 “illegal” S. offenders, fourth affecting to sentences aggregate 35 years, with credit for time served, seven already years, as prisoner’s contention that against jurisdiction to correct end, the sentence had come reducing he was entitled to from imprisonment on habeas discharge corpus. There an obvious distinction this between an regard increase and a decrease of the punishment illegally imposed, where is done at the especially instance of prisoner. But there is no occasion to we are pursue inquiry; concerned with only issue raised specific here.
And the statutory forfeiture the defendant’s license aj drive motor vehicle is an automatic process, no sense an unexecuted of the sentence part the period of during statute, ordained By force of the disability. licensé becomes forfeit the instant of conviction judgment *14 as the loss of the of
entered, right suffrage as much so just having consequence; a conviction of crime attending until the period deemed executory and the sentence cannot he reason. to all contrary That would be disability expires. concern; yet is of supreme public security Highway at the that end cannot be had laws to penal enforcement constitutional by the fundamental fairness that sacrifice of is of the essence of mandate, state, very punitive federal and have The as we such prosecutions. remedy against lapses and feasible administrative, enough here is largely simple The of sentence. imposition n — before adequate inquiry demands no justice due course of less. as to of the Motor
We no express opinion power Division in relation to the revocation of Vehicle Director class “in the driver’s license of an offender of given mandate,” with the absent a “formal statutory accordance not now before us. question resentencing.” Reversed. case, J. In this traffic our (dissenting).
Wachenfeld, detours the circuitous justice upon court highest reasoning valid, Laird’s first sentence was it was com- (2) (1) he executed before was denied pletely resentencing, (3) due and him his procedural process, (4) put resentencing in double jeopardy. fact, the first sentence was invalid
In because (1) contravened direction to assess a mandatory legislative it had penalty; more severe not been executed (2) completely for which Laird’s had two-year since the license period run; there was (3) had not no yet deprivation suspended of due since the defendant had ample notice process heard; to be double was not opportunity (4) jeopardy sentence merely issue since second corrected an illegal execution, its sentence, complete by before the lawful imposing demanded by Legislature. punishment e rests opinion what a majority upon Much certain said before automoblie was jurist invented and a hazard. traffic became His before could not knowledge solve the help pressing safety caused problems today the millions of roads, automobiles on our he of which oblivious and could not have envisioned. possibly Nothing demonstrates more that the clearly of one are principles age frequently invalidated of another. developments we provided in B. B. 8:7-ll
Realistically, court “may correct an sentence at illegal time.” any
Here, in substance, a drunken driver, offender, second a menace to the highway, escapes penalty imposed one else in *15 every class, his and the court, edict, traffic our by is prevented from what should have been done in the doing first instance.
The offense was considered so serious our lawmakers they deprived our courts of their usual discretion in sentencing. severity the mandatory punishment of a second
offender is known to driver every as well as every pedestrian. Laird knew, undoubtedly when he first appeared sentenc- that he ing, was a second His silence and offender. deliberate of his actual withholding status materially con- tributed to the court’s pronouncement of an sentence. illegal
Our decision ratifies the fraud practiced the court upon below and its stymies effort to law, with the thus comply permitting return early to the of a highway proven menace.
I cannot subscribe to the or reasoning logic, other- legal wise, about such a result. bringing
The “plainest principles of justice,” the standard set by the majority, call for clearly the affirmance of the judgment below. “Fundamental fairness” should at least occasionally be enjoyed as public well as the wrongdoer.
I am to affirm. For reversal —Chief Justice Weifteaub, Justices Hehee, Buelifg, Jacobs and Fbafcis —5.
For Wachefeeld —1. affirmance—Justice