Petitioner, Robert C. Somers, by application for writ of habeas corpus seeks to secure his immediate release from New Jersey State Prison. His incarceration there resulted from the following set of facts.
On May 14, 1956, in the Municipal Court of the City of Newark, petitioner signed a waiver of indictment and trial by jury pursuant to N.J.S. 2 A:8-22 and thereafter entered his plea of guilty to a charge of larceny. He was sentenced by the magistrate to a term of 30 months at State Prison. On June 6, 1956 the magistrate resentenced the petitioner, fixing the term in State Prison as not less than two years nor more than 30 months, thus complying with N.J.S. 2 A:164-17.
On May 14, 1956, also in the municipal court of the City of Newark, petitioner signed another waiver and pleaded guilty to a second charge of larceny. On this charge he
was sentenced to a term of six months at State Prison, to run concurrently with the sentence imposed on the first larceny charge. Such a sentence is permissible only if N.J.S. 2 A:164-15 is applicable to the municipal court. The question becomes moot in this case as the six-month sentence was completely served prior to the hearing in this matter.
In his application, filed July 5, 1956, the petitioner claimed that he was tried and sentenced without benefit of counsel after he had specifically requested the magistrate for an opportunity to retain counsel at his own expense. This ground, and the accompanying one of a possible abuse of discretion by the magistrate in refusing to allow a further adjournment for the purpose of obtaining counsel, were both abandoned at the hearing before this court, when it appeared that what was actually in question was the power of the magistrate to commit to State Prison.
Therefore, the only proper question before this court is as to the power and authority of the magistrate to commit to State Prison for those offenses enumerated in N.J.S. 2 A:8-22.
After the hearing on this writ, petitioner was given leave, upon request of counsel, to submit an application to the sentencing magistrate, to correct the alleged illegal sentence. The magistrate heard the matter and concluded that he had authority to impose the sentence to State Prison.
The only basis upon which this court could make the writ of habeas corpus absolute would be to find that the magistrate lacked the jurisdiction to try, convict and sentence the petitioner. I find that N.J.S. 2 A:8-22 confers such jurisdiction upon the magistrate and, therefore, the petitioner is not entitled to the remedy of habeas corpus. On the other hand, petitioner attacks the validity of the sentence imposed and he is therefore entitled to move to correct that sentence.
The proper method of disposing of this matter is, of course, by appeal from the magistrate's refusal to correct the sentence. However, as Judge Clapp stated in Manda v. State , 28 N.J. Super. 259, 264 (App. Div. 1953):
"The strong tendency of the law of this State is against the building up of separate forms of action; a party should not be put out of court if through error he selects the wrong form."
Under our enlightened system of jurisprudence no defendant should be incarcerated in the wrong institution while preparation is made for a decision on the question of such improper incarceration such as is now before this court.
New Jersey has a long legislative history of granting jurisdiction to inferior courts in certain criminal cases upon the condition of the filing of a proper waiver by defendants. Several examples of such legislation are to be found in the reported cases of De Feo v. Recorders Court of Town of Belleville , 129 N.J.L. 549 (Sup. Ct. 1943), and Manda v. State , 28 N.J. Super. 259 (App. Div. 1953). It is noted that in each instance the ...