On appeal from the Essex County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Oliphant, J. Wachenfeld, J., concurring in result.
This is an appeal by the defendant White from an order of the Essex County Court discharging a writ of habeas corpus and denying a motion to correct the sentence imposed upon him. While the appeal was pending in the Appellate Division we certified it on our own motion. R.R. 1:10-1(a).
On October 3, 1951 the defendant pleaded non vult to an indictment charging him with carrying a concealed weapon and he was sentenced to a term of one year in the county penitentiary, but execution thereof was suspended, he was placed on probation for a period of two years and ordered to pay the sum of $1 per week. While on probation he committed the crime of atrocious assault and battery to which he pleaded non vult, and on April 8, 1953 he was sentenced for that offense for a term of two to three years in State Prison. At the time of this sentence the court revoked the probation imposed on him on October 3, 1951, on the indictment for carrying concealed weapons, and imposed a new sentence on that indictment of two to three years in State Prison, the term to run consecutively to the sentence imposed on the atrocious assault and battery indictment.
On September 3, 1954 the defendant attacked the validity of the latter sentence by motion to correct an "illegal" sentence and by application for habeas corpus. After hearing, the court denied the motion and discharged the writ, holding
that the court had the power to increase the sentence originally imposed on the carrying concealed weapons charge since the defendant had violated the terms of his probation.
Thus the problem presented is whether upon a violation of one's probation the sentencing judge may increase the original sentence which had been imposed.
The Probation Act, N.J.S. 2 A:168-4, in dealing with parole violators provides in part:
"* * * Thereupon the court, after summary hearing, may continue or revoke the probation and the suspension of sentence, and may cause the sentence imposed to be executed or impose any sentence which might originally have been imposed."
Our former Supreme Court dealt with the same problem as here presented in State v. Pascal, 133 N.J.L. 528 (Sup. Ct. 1946), and held that on violation of probation the original sentence might be increased and said:
"Finally it is said that the first sentence having been one to two years, the instant sentence of fifteen months to two years is error, but the statute, supra, or in our judgment, is a complete answer to this since our law provides that the court, after summary hearing in these circumstances, may continue or revoke the probation and suspension of sentence and may cause the sentence imposed to be executed or impose any sentence which might originally have been imposed."
And Manda v. State, 28 N.J. Super. 259 (App. Div. 1953), was a case in which the defendant had originally been sentenced to the county penitentiary for one year, the sentence being suspended and probation imposed for three years. When the probation was later revoked and the defendant given an indeterminate sentence to Annandale Reformatory, it was held that the ...