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In re Application of Michael M. De Luccia for Writ of Habeas Corpus

Decided: October 27, 1950.

IN THE MATTER OF THE APPLICATION OF MICHAEL M. DE LUCCIA FOR WRIT OF HABEAS CORPUS


Hughes, J.c.c.

Hughes

On the representation that he is illegally confined in the New Jersey State Prison, petitioner De Luccia was granted a writ of habeas corpus under the authority of R.S. 2:82-1 et seq. In the petition for the writ, as amended, it is alleged that petitioner has been imprisoned since February 12, 1948, under sentences imposed upon him in the former Essex County Court of Quarter Sessions on February 11, 1948; that such sentences have been served; and that he is entitled to immediate release. The State filed its return, claiming justification of its detention of petitioner under certain commitments allegedly based on such sentences.

On the return of the writ, testimony was taken and stipulations entered of record, resulting in the development of the following issue:

On January 15, 1948, the Essex County Grand Jury returned four bills of indictment, assigned Docket Numbers 427 to 430, inclusive, charging petitioner with separate offenses of larceny and receiving, in violation of the statute. On January 26, 1948, petitioner entered pleas of non vult to each of such indictments. On February 11, 1948, he appeared before the court for sentence and after the sentencing judge had reprimanded him for his conduct, which, of course, was

not part of the formal sentence, the court imposed sentence in the following words: -- "I sentence you to New Jersey State prison for a period of 1 to 3 years." The petitioner then addressed the court as follows: -- "Is that on each count, your Honor?" The court rejoined: -- "Yes, on each count." (It is stipulated that by the word "count" in this colloquy, both judge and prisoner were referring to the indictments mentioned.) The petitioner was then removed from the courtroom and later transferred to the New Jersey State Prison to commence service of his sentences.

The clerk of the court in due course entered in his minutes, as to Indictment No. 427, the following:

"February 11, 1948 The Court Ordered and adjudged that the said

defendant, Michael DeLuccia, be imprisoned in

the State Prison of this State for a minimum

term of one (1) year, and for a maximum term

of three (3) years, at hard labor ...


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