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State v. Alvarado

Decided: July 3, 1967.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PABLO ALVARADO, DEFENDANT-APPELLANT



Conford, Foley and Leonard. Foley, J.A.D. (dissenting).

Per Curiam

Defendant was convicted in the municipal court of simple assault and battery, N.J.S. 2A:170-26, and sentenced to a term of nine months in the Essex County Penitentiary. He appealed to the Essex County Court where a trial de novo was held and he was again found guilty. The County Court judge imposed a penitentiary sentence of six months. Sentencing took place on June 27, 1966.

On August 22, 1966 defendant filed a motion for a reduction of sentence returnable August 26, 1966 upon the authority of R.R. 3:7-13, which in pertinent part provides:

"The court may reduce or change a sentence by order entered not later than 60 days from the date of the judgment of conviction."

At the time the motion was filed defendant's attorney was advised by the office of the county clerk that the trial and sentencing judge was on vacation, and would not be available until September 12, but that the motion would be carried by the assignment judge until the judge returned to duty. The matter was continued by the assignment judge until September 16. On that date defendant's attorney appeared before the sentencing judge in support of the motion. The judge ruled that the provisions of R.R. 3:7-13, viz., that

an order for reduction of sentence be entered not later than 60 days of the date of judgment, deprived him of jurisdiction; and further that he was without authority to enlarge the time for hearing the matter because of the restrictions of R.R. 1:27B(c) which specifically prohibits the enlargement of time by the court or the parties "for taking any action" under R.R. 3:7-13, supra, and under certain other rules.

On this appeal defendant contends: (1) the court erred in its ruling as above set out, and (2) the court erred in imposing sentence in the absence of a presentence report from the probation authorities.

We regard defendant's first point as well taken. While the rule literally requires the order for relief to be "entered" not later than 60 days from sentence, we take this as evincing a directory intent in relation to the judge but not a jurisdictional bar as against an applicant for relief who has filed his motion well within the 60-day period specified. It is not reasonable to impute to the rule an intent to proffer to a defendant a means for obtaining sentencing relief with one hand and to deprive him of its benefit with the other on the unjust basis of another's failure to comply with a time directive. In so holding, however, we point out that the directory policy of the rule is a strong one and that the bench should be at pains to comply with it punctiliously. Compare the present language of the rule with the following wording before the amendment effected in December 1963: "The court may reduce or change a sentence within 60 days from the date of the judgment of conviction."

We need not on this appeal decide whether a presentence probation report is mandatory under R.R. 3:7-10(b) in every case of sentence de novo by a County Court on an appeal from a conviction for disorderly conduct in a municipal court. But before a defendant is sentenced by a County Court to be incarcerated for as much as six months a probation report is clearly indicated, and we direct that such a report be obtained and considered by the sentencing judge

on the remand. Cf. State v. Culver, 40 N.J. Super. 427 (App. Div. 1956), affirmed and modified, 23 N.J. 495 (1957), certiorari denied 354 U.S. 925, 77 S. Ct. 1387, 1 L. Ed. 2 d 1441 (1957) and Culver v. ...


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