Clapp, Burton and Artaserse. The opinion of the court was delivered by Artaserse, J.s.c. (temporarily assigned).
[31 NJSuper Page 536] Defendant, James Dento, now confined in State Prison, appeals from an order of the Somerset County Court clarifying the language of the sentence imposed upon him. This case comes before
us a second time. A chronological recital of the events relative to the defendant's confinement in State Prison is, therefore, appropriate.
On January 8, 1947, Dento was sentenced by the Essex Court of Quarter Sessions on three charges of breaking, entering and larceny. He was given a state prison sentence of not less than six, nor more than seven, years on each charge, the sentences to run consecutively. On June 24, 1947, he was brought from State Prison before the Somerset Court of Quarter Sessions, where he was represented by counsel of his own choice and pleaded guilty to indictment No. 5930, in which he was charged with breaking and entering with intent to steal, and also pleaded guilty to indictment No. 5930A in which he was charged with breaking, entering and larceny. Thereafter, and on the same day, he was sentenced by the Somerset Court of Quarter Sessions on each indictment. The transcript of the proceedings on sentence on the foregoing two indictments reveals that before sentence was imposed the defendant's attorney stated to the court: "The defendant has before him 18 to 21 years in State Prison. * * * I also ask that the sentence be entered concurrently." Dento himself told the court: "I have 18 to 20 years to do now." The court then stated: "* * * The sentence of the court is that you serve a term of not less than five years nor more than seven years in State Prison on each of the indictments, and that each term shall run concurrently, but shall run consecutively with the term you are now serving." The minutes of the clerk of the Somerset Court of Quarter Sessions relative to the sentence imposed on indictment No. 5930, records it as follows: "The court directs that the defendant, James Dento, be committed to the New Jersey State Prison for a term of not less than five years and not more than seven years. This sentence to run consecutively with sentence imposed by another County under the terms of which the defendant is now confined."; and relative to the sentence on indictment No. 5930A, records it as follows: "The court directs that the defendant, James Dento, be committed to the New Jersey State Prison for a
term of not less than 5 years and not more than 7 years. The court further directs that this sentence shall run concurrently with sentence on indictment No. 5930." At the time of the imposition of these sentences, it was not required that a judgment of conviction setting forth, among other things, the sentence imposed should be signed by the Judge and entered by the clerk as is now required by R.R. 3:7-10(d).
On May 25, 1953, the defendant filed a petition with the Somerset County Court, wherein he recited that the admission and record clerk at the State Prison had advised petitioner that he must serve his Somerset County sentences after serving the 18 to 21 years under the Essex County sentences; that this was contrary to the sentences imposed by the Somerset Court of Quarter Sessions, and that the latter five to seven year concurrent sentences were to run consecutively with the sentence under the terms of which petitioner was then confined, namely the first of the three Essex sentences. Thus, the prisoner alleged, the Somerset sentences "would expire with the second Essex County sentence." The petition requested the County Court to direct the admission and record clerk to change his record to read that the Somerset five to seven year concurrent sentences run consecutively to the first of the three Essex sentences he was then serving. The County Court treated this petition as one for correction of sentence and held that there was no illegality in the sentence and an order was entered dismissing the petition. Thereupon, an appeal was taken to this court, which affirmed the order of the County Court, by opinion reported in 28 N.J. Super. 21 (App. Div. 1953), and which contains the following observation:
"What Dento obviously seeks to do on this aspect of the case is to anticipate what may possibly happen after his three Essex County sentences have run their course."
This court then suggested in said opinion that:
"In view of Dento's concern with the possible ambiguity in the quoted language used by the Somerset Court of Quarter Sessions in
sentencing him, it would seem proper as well as practical for the Prosecutor at this time to move, under R.R. 3:7-14, that the County Court clarify the language of the sentence while the matter is still relatively fresh. Should the Prosecutor fail to do so the Somerset County Court may act on its own motion. Notice should, of course, be given the prisoner."
Pursuant to this suggestion, and on due notice to the defendant, the State, on December 15, 1953, moved before the Somerset County Court, and in the presence of the defendant, to clarify the language of the sentence imposed upon the defendant on June 24, 1947. The minutes of the clerk of said court recite that at the hearing the defendant made an argument in opposition to the motion. The court granted the motion and ...