On the representation that he is illegally confined in the New Jersey State Prison, petitioner, Fitzpatrick, was granted a writ of habeas corpus under the authority of R.S. 2:82-1 et seq. In the petition for the writ, it was contended that petitioner had been classified as a "third offender," although he had never been indicted and tried as such under the statutes relating to such multiple offenders; that as a result of such classification by the administrative officers at the Prison, he was unlawfully deprived on his sentences of the commutation time for good behavior and performance of assigned labor, established by statute (R.S. 2:103-9; R.S. 30:4-140); and that upon the restoration of such commutation time, he would be entitled in law to immediate release.
By virtue of the provisions of P.L. 1950, c. 315, the basic contention of the petitioner is now academic and by stipulations entered into at the hearing on the writ between the representative of the State and the petitioner, it is clear that there will be (or has already been) restored to the prisoner all such commutation time of which he heretofore was deprived;
and that, accordingly, such ground for relief is withdrawn.
The return to the writ predicates the detention of the prisoner from January 23, 1945, to the present, upon two consecutive sentences imposed upon him, the first, in Essex County on January 19, 1945, for a term of not less than 4, nor more than 7 years; the second, in Hudson County on October 19, 1945, for a term of not less than 3, nor more than 5 years, the sentence on the latter term stipulating that it should commence on the expiration of the former.
The prisoner gave evidence on the return of the writ as to his status and his contentions, the latter being clarified by stipulations entered of record under the supervision of the court. As a result thereof, it appears that although his complaint as to the deprivation of such commutation time is now withdrawn by reason of the corrective and retroactive effect of P.L. 1950, c. 315, supra , his claim to immediate release rests on another distinct and fundamental ground. This contention is that upon the expiration of the minimum of his first sentence (as reduced by the work time and commutation time for good behavior, to which he was entitled by virtue of R.S. 30:4-140), he entered upon service of his second term; that he has served the minimum of his second term, as reduced by similar time credits, and that he is, therefore, entitled to immediate release. I think that in order to effect complete justice, and pursuant to the liberal amendment policy of the Rules of court, the petition should be deemed to be amended to include such additional ground.
The State answers in argument that petitioner was never paroled on either of his terms of imprisonment and that, accordingly, he must be considered to be serving the full maximum on his first term, i.e. , 7 years, less the commutation and work credits to which he is entitled, conceded to be approximately 330 days for good behavior and 150 days for work assignments performed.
To this the petitioner rejoins by evidence that the administrative officials at the Prison "lumped" his consecutive sentences,
that is to say, that they were recorded as a unit and that the administrative record of such was made to reflect a combined minima and maxima so that in total aggregate it determined such sentences to have a minimum of 7 years and a maximum of 12 years. He further contends that this action misled him into the belief that he was ineligible for parole until the expiration of his "minimum," i.e. , the combined minima of such sentences; that, being thus lulled, he failed to apply for parole at the expiration of the minimum of his first sentence and that, accordingly, the court must now deem that sentence concluded on the expiration of the minimum thereof. The same general reasoning is applied (in necessary effect to his claim for immediate release) to the second sentence.
There was an admission of some ambiguity in the evidence that petitioner had in fact applied for parole to the old Court of Pardons and that such had been denied, although the date thereof was not shown. As I view the law, however, it seems to me unnecessary to determine this fact by taking additional evidence thereon.
The effect of the evidence and stipulations mentioned moulds a basic issue for resolution. If, as petitioner contends, his sentences concluded on the expiration of the respective minimum terms thereof, he is entitled to immediate release. If they were not so terminated, of course, his detention ...