Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
[33 NJSuper Page 498] The record returned in response to the present appeal informs us that the grand jury of Bergen
County at the September term, 1952, presented an indictment against the defendant-appellant alleging that on June 16, 1952 in the Borough of Lodi "he did then and there have in his possession a certain quantity of narcotic drug, to-wit, thirty packages of cocaine, in violation of R.S. 24:18-4." The defendant thereafter expressed in writing his desire to waive trial by jury and be promptly tried in the County Court. The judge of the County Court referred the case to the Criminal Judicial District Court of the County of Bergen for trial and determination. N.J.S. 2 A:7-21; R.R. 3:4-2(b). Cf. In re Corpolongo , 28 N.J. Super. 239, 245 (App. Div. 1953).
The defendant appeared in that court, represented by an attorney, on January 16, 1953 and entered a plea of guilty. The defendant on March 25, 1953 signed a waiver of the delay in the imposition of sentence upon him in which he stated.
"I do hereby waive any rights, privileges, or advantages which I may have under said statute (presumably R.S. 2:192-1) and consent that sentence may be imposed at any time hereafter, but not later than one year from the date hereof."
On the same day the defendant was sentenced to serve a term of imprisonment in the New Jersey State Prison of not less than three nor more than five years.
The statute then effective and applicable specifically prescribed as a penalty for the first commission of the offense of the unauthorized possession of a narcotic drug, a fine not exceeding $2,000 and imprisonment for a term of not less than 2 years and not more than 15 years. R.S. 24:18-47, as amended L. 1952, c. 90, p. 424, effective April 24, 1952.
Upon subsequently recognizing that the sentence actually announced on March 25, 1953 was not in obedience to the precept of the statute in that the imposition of a fine had been ignored, the judge summoned the defendant for sentence on May 25, 1953 and then erased the effectiveness of the prior invalid sentence and sentenced the defendant to pay a fine of $250 and serve a term of imprisonment of not
less than three years nor more than five years in the New Jersey State Prison "with credit for the 61 days spent in the Bergen County Jail awaiting trial and sentence."
Sometime thereafter the defendant addressed a petition to the Superior Court, Bergen County (see R.R. 3:7-15(a), (c); 8:12-1) in which he impugned the legality of the sentence of May 25, 1953 in that he claimed that he was penalized for the unlawful manufacture and sale of a narcotic drug whereas he was indicted only for, and pleaded guilty to, the unlawful possession of the drug.
The reason for the defendant's erroneous notion that he had been sentenced for the manufacture and sale of the narcotic drug will be presently explained. At the moment it is in order to state that his petition to the Superior Court was apparently recognized as an application to correct, more probably to nullify, the sentence. The petition was denied by an order, the legal propriety of which we are requested to review.
Obviously the idea that he had been sentenced for the unlawful manufacture and sale of narcotic drugs was the impact upon his mind of the contents of a letter he received from the Admissions and Records Officer of the New Jersey State Prison. The defendant's ...