On appeal from the Superior Court, Appellate Division, whose opinion is reported in 9 N.J. Super 29.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld and Ackerson. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
Defendant, an inmate of the State Prison, appeals from a judgment of the Appellate Division, entered as the result of an opinion holding that his writ of error was not prosecuted within time.
Janiec was convicted in the former Monmouth County Court of Quarter Sessions on three indictments, and on December 11, 1946, he was sentenced on one of the indictments to the State Prison for the term of his natural life under the Habitual Criminal Act, R.S. 2:103-10. He was sentenced to lesser terms under the other two indictments. He applied to the Mercer County Court of Common Pleas for a writ of habeas corpus to review his life sentence. This was denied and an application to the former Supreme Court for a writ of certiorari to review that action was made by him. This was denied on April 13, 1948, In re Janiec, 137 N.J.L. 94 (Sup. Ct. 1948), on the grounds that habeas corpus was not the proper remedy.
On December 5, 1947, Janiec, appearing pro se, filed with the former Supreme Court two documents called "Petition on Application for Writ of Error" and "Petition for Application of Writ of Error." Several trial errors were alleged in the first petition and the concluding paragraph was that he be granted a hearing and that the convictions be reversed. The
second petition had to do with the application of the Habitual Criminal Act, supra. Here again he asked for a hearing and a reversal.
On the day of the filing of these petitions the former Supreme Court entered a per curiam opinion that writs of error issue as of right if sued out within one year from the time of rendition of judgment and ordered that the appellant should prepare and present the writs to the clerk for sealing within time. On that same day, December 5, 1947, a copy of the opinion was served on Janiec. Three days later, on December 8, 1947, he, by letter addressed to the court, requested a 90-day extension "so that he could secure the necessary funds in which to retain counsel so that a writ of error can be filed in my behalf in a qualified manner." On December 11, 1947, the last day for the issuance of the reviewing process, a writ of error had not been issued. On January 8, 1948, 13 months after the judgment of conviction, the court, by letter addressed to Janiec, granted the extension of time requested by him, although he was advised therein that the justices who comprised Part I of the then Supreme Court and who acted in the premises were in doubt as to their right to do so. It should be observed at this point that Janiec allowed the year from the time of his conviction to toll without acting to preserve his rights despite the fact he at that time had heard nothing from the court in response to his letter of December 8, 1947.
Following receipt of the letter from the court of January 8, 1948, Janiec prepared for filing what was entitled "Brief in Behalf of the Plaintiff in Error," in its general form a brief on appeal and containing statements of fact for reversal as well as argument thereon. He says he intended the brief to serve the purpose of a writ of error and delivered it to the State Prison authorities for mailing to the court on March 2, 1948. Because of some "interference" on the part of unknown prison authorities it was not mailed and was returned to him after the extension of time granted him had expired.
The Appellate Division entertained jurisdiction of the appeal, assigned present counsel to the defendant and on July
17, 1949, rendered an opinion holding that there was error in the imposition of the life sentence upon the defendant because the necessary prior convictions were not proved in a proceeding to establish the basis for a sentence of life imprisonment under the statute and in this respect he was denied due process of law. The sentence of life imprisonment was set aside and the cause remanded to the Monmouth County Court for the imposition of an appropriate sentence. As to the grounds presented for reversals of the judgments, the holding was that Janiec did not "prosecute his informal application for a writ of error within the time extended him by the former Supreme Court" and therefore "his attack upon his convictions is not properly before this court."
We do not concern ourselves with the action of the Appellate Division in setting aside the sentence of the defendant to life imprisonment and the remanding to the County Court for the imposition of a proper sentence. An ...