State v. WilliamsState v. Williams
Defendant pleaded non vult to murder and was sentenced on July 3, 1973 to a term of not less than 14 nor more than 15 years in the New Jersey State Prison. In November 1974 he moved for a change оf sentence pursuant to
During the pendency of the appeal defendant was released from prison and cоmpleted the in-patient drug rehabilitation program. He then continued as a probationer subject to the general rules of probation. After the decision of the Supreme Court he was returned to the New Jersey State Prison.
Upon his return to State Prison he filed a motion for a sentencе credit for the time he spent on probation from November 20, 1974 until November 14, 1977, a little more than three years. After oral argument the judge who suspended the unserved portion of the original prison sentence denied the motion.
On appeal defendant asserts:
Point I Denial of defendant‘s motion for sentence credits violatеs his constitutional and statutory rights against double punishment for the same offense. Point II Denial of defendant‘s motion for sentence credits deprives him of equal protection of law.
We are satisfied that the failure to credit defendant with the time he spent on probation from November 20, 1974 until November 14, 1977 constitutes multiple punishment for the same offense and is therefore in violation of the Fifth Amendment‘s guarantee against double jeopardy. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969); Oksanen v. United States, 362 F.2d 74 (8th Cir.1966).
Without question, the double jeopardy clause of the Fifth Amendment not only protects against a second prosecution for the same offensе after acquittal, or after conviction, but also against “multiple punishments for the same offense.” North Carolina v. Pearce, supra, 395 U.S. at 717, 89 S.Ct. at 2076.
“And * * * there has never been any doubt of [this rule‘s] entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.” 395 U.S. at 717-718, 89 S.Ct. at 2076, 2077, quoting from Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873). Additionally, it is also clear that the Fifth Amendment‘s protection applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
We believe it equally pertinent to point out that, contrary to the State‘s position,
Nor are the facts in this case similar to State v. Braeunig, 135 N.J. Super. 89 (Law Div. 1975), mod. 140 N.J. Super. 245 (App. Div. 1976), certif. den. 66 N.J. 325 (1974). In Braeunig the court, in our judgment, properly denied defendant
In the case at hand we are deаling with additional punishment during service of a sentence previously imposed. In 1973 the defendant commenced serving a State Prison term of not less than 14 yеars nor more than 15 years in the New Jersey State Prison. When the balance of the original sentence was suspended and he was improperly placed on probation, defendant served an alternative disposition, i.e., probation. Unquestionably, probation is a form of punishment. In Guides for Sentencing, National Council on Crime and Delinquency (1957), reference is made to four dispositions: probation, imprisonment, fine and suspended sentence. In discussing probаtion the Guides state:
Probation is not granted out of a spirit of leniency. It involves placing an offender under the supervision of a probation officer for a specific period. The term “supervision” implies continuing control by the court through the agency of its probation officer. This control is manifestly of a different character from that present in a penal institution. During the period of supervision, the officer‘s guidance and direction continue to be exercised and the offender remains accountable to the court for his behavior. As the Wickersham Commission said, probation is not merely “letting the offender off easily.”
[at 13-14; footnote omitted]
In Oksanen v. United States, supra at 81, the court concluded:
* * * This probation is a punishment tantamount to imprisonment. United States v. Rosenstreich, 204 F.2d 321 (2 Cir.1953). * * *
New Jersey has also recognized probation tо be within the concept of punishment. Former Chief Justice Weintraub, in a strongly worded statement, underscored this point.
Therefore, when the defendant was required to resume his original prison sentence withоut receiving credit for the probationary sentence, he was receiving a multiple punishment for the same offense. His original sentence wаs supplemented and extended. This is improper. A criminal sentence, while it may be reduced or corrected for legal and clerical errors pursuant to
In North Carolina v. Pearce, supra, the Supreme Court concludes in broad and clear language:
We hold that the constitutiоnal guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully “credited” in imposing sеntence upon a new conviction for the same offense. * * *
[395 U.S. at 718-719, 89 S.Ct. at 2077; footnote omitted]
In sum, the effect of refusing defendant credit for the probationary period sеrved after modification of his original sentence would be to impermissibly increase his sentence previously imposed, thus violating his basic Fifth Amendment guarantee against double jeopardy. That is, by failing to credit the defendant with the time of his probationary
The mandate of the Pearсe decision cannot, in any meaningful fashion, be distinguished from the instant case. We hold that defendant‘s guarantee against double jeopardy requirеs that his present custodial sentence receive credit for the time he served the aforementioned probationary sentence. Undеr these circumstances, we need not examine defendant‘s argument invoking his constitutional right to “equal protection of the law,”
Reversed and remanded.