[5 NJSuper Page 506] 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 two and not more than three 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, and fails to provide distinct minimum and maximum terms as required by R.S. 2:192-4. 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, c. 219, p. 888, par. 2, amending R.S. 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 (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 (Sup. Ct. , February 2, 1925); State v. Garton , 102 N.J.L. 318 (E. & A. , May 17, 1926); State v. Burns , 135 N.J.L. 386 (Sup. Ct. , April 2, 1947); 136 N.J.L. 601 (E. & A. , January 29, 1948); State v. Lutz , 135 N.J.L. 603, and cases cited at 605 (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 ...