[10 NJSuper Page 596] In this case the petitioner for the writ of habeas corpus was received at the New Jersey State Prison on July 28, 1944, to commence service of two consecutive sentences imposed upon him in Essex County, each such sentence being for a minimum of two and a maximum of three years, and such sentences being ordered to run consecutively. The first sentence imposed upon him in Essex County was imposed on July 26, 1944, for a minimum of two and a maximum
of three years. And on October 25, 1944, he was sentenced in Essex County to serve not less than two nor more than three years, the court providing, "This sentence to run consecutive to term defendant is now serving." The first sentence above bears Docket No. 395 of the April Term, 1944, and the second sentence bears Docket No. 48933 of the September Term, 1944.
Upon his receipt in the New Jersey State Prison, the defendant commenced service of the sentence under No. 395. The State Prison administrative office, however, under a practice which it had pursued for some years, combined or "lumped" these sentences to yield a total minimum of four and a total maximum of six years.
Thereafter and on May 10, 1946, the petitioner was sentenced before the appropriate court in Cumberland County, for the crime of escape, to serve two and a half to three years. That sentence, according to the commitment over the signature of the Clerk of the Court of Quarter Sessions of Cumberland County, "to begin at the expiration of the present term now being served."
On the basis of a letter from the Attorney General of New Jersey calling these facts to the court's attention, by reason of a recent decision of the Mercer County Court and a consequent change in the practice of combining or "lumping" such sentences, this court considered the letter from the Attorney General as a petition for the issuance of a writ of habeas corpus on behalf of this prisoner. A writ was therefore issued pursuant to the authority of R.S. 2:82-1 et seq. , returnable December 14, 1950.
On the return of the writ, by testimony taken and stipulations formally entered into by the applicant, it appears that the decision of the Mercer County Court in the case entitled In re Fitzpatrick , 9 N.J. Super. 511, 75 A.2d 636 (Mercer County Court, Law Division , 1950), resulted in a revision of the administrative records in the State Prison to separate the two consecutive Essex County sentences, with the consequent determination that the maximum term of the first Essex
County sentence, namely, the sentence on indictment No. 395, supra , expired on August 15, 1946, and thereupon the prisoner entered upon service of the second Essex County sentence, namely, that on indictment No. 48933, the maximum term of which expired on January 28, 1949. The dates of expiration of these two maximum terms take into account, and there has been allowed to the petitioner in achieving such expiration dates, all "jail" time allowed him by the sentencing court and all good behavior and work time to which he is entitled under the provisions of R.S. 30:4-140.
The question for decision before the court in this proceeding deals with the significance of the restrictive provision contained in the sentence imposed upon the prisoner by the Cumberland County Court. If that language, namely, "Said sentence to begin at the expiration of the present term now being served," had reference to the combined or "lumped" sentences which had been imposed in Essex County as aforesaid, this prisoner is still serving the Cumberland County sentence, having commenced service thereof on January 28, 1949, and such maximum term not having been completed. On the other hand, if such language refers to the term imposed in Essex County under indictment, Docket No. 395 (the maximum of which expired, as stated, on August 15, 1946), then upon the expiration of such first Essex County sentence, the prisoner began to serve, concurrently, the second consecutive sentence imposed in Essex County and also the sentence imposed in Cumberland County.
Within the reasoning set forth in the case of In re Fitzpatrick, supra , I find and determine that the significance of the restrictive condition in the sentence imposed by the Court of Quarter Sessions in Cumberland County can have reference only to the precise term being served at the time of its imposition and, accordingly, has reference to the term imposed upon the prisoner under indictment No. 395 in Essex County.
Generally, service of a term of imprisonment imposed by a court commences immediately ...