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In re Legdon

Decided: April 26, 1951.

IN THE MATTER OF THE APPLICATION OF FRANK LEGDON FOR ISSUANCE OF WRIT OF HABEAS CORPUS


On application for the writ.

Hughes, J.c.c.

Hughes

This petitioner applies for the writ of habeas corpus under R.S. 2:82-1 et seq. , on the ground that he is unlawfully detained in the New Jersey State Prison, and in support thereof makes the following claims:

He states that he was born September 11, 1926, and at the age of 13 years was committed for juvenile delinquency (truancy) to the State Home for Boys at Jamesburg, an institution of the State described in R.S. 30:4-156 et seq.; that upon attaining the age of 16 years he was transferred by order of the commissioner under the statute R.S. 30:4-85, to the New Jersey Reformatory at Annandale, a reformatory described in R.S. 30:4-150 et seq.; that in April, 1944, he was paroled from Annandale, but by reason of changing

employment in violation of the parole conditions, the same was revoked and he was returned to Annandale, being reparoled a month later, in May, 1944. In the latter part of May, 1944, he was sentenced in the former Court of Quarter Sessions of Passaic County to the Annandale Reformatory on conviction of the crime of receiving stolen goods.

The petitioner here leaves a gap in his narrative, but the institutional records (which he is at liberty to challenge if he wishes) indicate that he entered Annandale on the receiving sentence on June 2, 1944, was transferred by the commissioner to the former New Jersey Reformatory at Rahway on July 18, 1944 (R.S. 30:4-85, supra; R.S. 30:4-146, as amended, L. 1948, c. 60, p. 149, ยง 3), and escaped from such institution on November 23, 1944. A short time later, apparently while still at liberty on such escape, he was again convicted of crime.

I now return to petitioner's recital of events as contained in his petition. He entered the New Jersey State Prison on January 19, 1945, to serve a sentence of not less than six nor more than seven years, imposed upon him in the former Court of Quarter Sessions of Passaic County on conviction of the crime of atrocious assault and battery (R.S. 2:110-1). He served the maximum of this sentence, which after credit of the uniform commutation time due him under R.S. 30:4-140, expired on July 17, 1950. The State Prison authorities continue to hold him to serve out the unexpired maximum of his said receiving sentence to Annandale, the commissioner being authorized by R.S. 30:4-85, supra , to require him to serve the balance of such sentence at such prison. Ex parte Zinowicz , 12 N.J. Super. 563 (Cty. Ct. 1951). The State Prison Admissions and Record Clerk advises petitioner that his "adjusted maximum" on this term is January 20, 1957, less employment credits to which he may become entitled (R.S. 30:4-92) and subject, of course, to the possibility of parole before the expiration of such maximum.

Now a word as to the nature of the sentence on which he is presently held. Since the punishment on the conviction

for receiving consisted of a sentence to the reformatory at Annandale, it was an "institutional sentence,"*fn* which has no fixed minimum and of which the maximum corresponds to the statutory maximum term for the particular crime, which, for the high misdemeanor of receiving, amounts to seven years (R.S. 2:164-1, R.S. 2:103-5). On this type of sentence, unlike the direct minimum-maximum term to State Prison, the erstwhile reformatory inmate is immediately and always eligible for consideration for parole, despite the continuing service of such sentence at the State Prison. Ex parte Zinowicz, supra.

It is suggested that shortly before petitioner's escape, consideration was being given his parole, but that parole apparently did not become effective and he was thus at liberty as an escaped prisoner when he was convicted of the subsequent crime of atrocious assault and battery.

This petitioner complains that the court in Passaic County, in 1945, did not specify that the six-to-seven year sentence imposed by it was to be served consecutive to or apart from any "parole or back time that I may owe" the Annandale institution. He thus necessarily argues that this time was served concurrently with the sentence completed on July 17, 1950. But such specification in the sentence ...


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