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In re Clover

Decided: February 24, 1955.

IN THE MATTER OF THE APPLICATION OF FRED CLOVER FOR A WRIT OF HABEAS CORPUS


Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

A writ of habeas corpus granted to appellant, who is confined in New Jersey State Prison, was discharged after hearing. On this appeal he contends that prior to the date of revocation of his license to be at liberty he had served all of the time in confinement and on parole which could be exacted of him on the particular sentences which are involved in this proceeding.

On November 23, 1933 Clover was given seven consecutive sentences, five of them three to seven years and two of them two to three years in New Jersey State Prison. When he was received at the institution the authorities aggregated or lumped his sentences so as to reflect a total sentence of 19 to 39 years. Our computation on this basis is 19 to 41 years. However, the lower maximum figure is set forth in the statement of the Parole Board which appears as part of the record of these proceedings. Which figure is correct is not a matter for determination on this appeal. Such uniting of sentences was then illegal and beyond any authority possessed by the prison managers or the Court of Pardons. In re Domako , 9 N.J. 443 (1952); In re Fitzpatrick , 9 N.J. Super. 511 (Cty. Ct. 1950), affirmed 14 N.J. Super. 213 (App. Div. 1951); Cf. N.J.S.A. 30:4-123.10, L. 1950, c. 292, p. 989.

On December 22, 1945, after 12 years of imprisonment, Clover was granted a "License to be at Liberty" by the Court of Pardons, in which such authority resided. R.S. 2:198-1 (repealed L. 1949, c. 18, ยง 6). At this time, according to the statement referred to, he had served his minimum sentence "computed on an aggregated basis."

The certified copy of the license to be at liberty appearing in the appendix bears the notation that the maximum period of parole would expire on June 28, 1956. Certain conditions regulating the conduct of Clover during the ensuing period were attached to the license. One specific provision appearing therein was that upon revocation of the parole "street

time," the time between the release from prison and his return, would not be credited on his sentence. This was in accordance with the then pertinent statute, R.S. 2:198-4.

On January 26, 1952, while at liberty, Clover violated N.J.S. 2 A:151-8 of the Crimes Act. A complaint was filed thereon on January 30, 1952 and he pleaded not guilty on June 9, 1952. However, on July 2, 1952 this plea was retracted and one of non vult entered, following which on July 16, 1952 he was sentenced to one to two years in State Prison.

On April 25, 1952, which was prior to the conviction referred to, the license to be at liberty was revoked because of violation of the "terms, conditions or limitations" thereof. N.J.S. 2 A:167-10. Presumably the revocation resulted from Clover's arrest on the charge of which he was later convicted. The maximum term under the one to two year sentence was completed on October 19, 1953 and he was "reverted" to his status as a prisoner serving the sentences on which he had been given his license to be at large.

A license to be at liberty issued by the now extinct Court of Pardons is different from a parole granted under the present Parole Act, N.J.S.A. 30:4-123.1, et seq. The provisions of N.J.S.A. 30:4-123.24, L. 1948, c. 84, p. 488, denying street time credit when a parole is revoked for subsequent conviction of crime and allowing such credit where the revocation is for other reasons, do not apply to such licenses. In re Kneipher , 12 N.J. Super. 407 (Cty. Ct. 1951); N.J.S. 2 A:167-8 (formerly N.J.S.A. 2:196 A -10). They remained subject to the terms and conditions made a part thereof, until July 25, 1953 (L. 1953, c. 275, p. 1805: N.J.S. 2 A:167-12), when by amendment the same rules with respect to street time credit upon revocation of parole were made applicable to such licenses.

As set forth above, Clover's license to be at liberty was withdrawn on April 25, 1952. This was prior to his conviction and consequently could not have been produced by it. However, the withdrawal was also prior to the 1953

amendment and since this legislative change does not contain language demonstrating retroactive application to previously revoked licenses, it cannot be said that the time spent at large can be applied in ...


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