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State v. De Bonis

Decided: April 8, 1971.


For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the Court was delivered by Weintraub, C.J.


Defendant pled guilty in a municipal court to a number of motor vehicle charges. The municipal court imposed fines and costs. The trial court refused defendant's application to pay in installments and ordered defendant committed until payment was made. Defendant thereupon appealed to the county court solely from the sentence. The appeal to the county court called for a de novo determination of the punishment. R. 3:23-8(a). The county court imposed jail sentences together with fines and costs but suspended the payment of the fines and costs. Defendant appealed to the Appellate Division, and we certified the matter before that appeal was heard.

Defendant raises two issues. The first is whether the county court could impose a heavier sentence than that from which defendant appealed. The second is whether the Constitution required that defendant be permitted to pay the fines and costs in installments because of his alleged inability to pay them in one lump sum. The issues will be considered in that order.


Six motor vehicle charges were involved. Three consisted of driving while on the revoked list, as to which the authorized punishment for each offense was a fine of not less than

$200 nor more than $1,000, or imprisonment for not more than six months, or both. N.J.S.A. 39:3-40. Two charges consisted of applying for a driver's permit while the driver's license was revoked. As to each of those charges, N.J.S.A. 39:3-34 authorized a maximum fine of $500 or maximum imprisonment of three months, or both. The remaining charge was for failing to have a driver's license in his possession, as to which N.J.S.A. 39:3-29 authorized a fine up to $100.

The municipal court imposed fines totalling $705 together with costs of $25. Under the terms of the commitment, defendant, if he did not pay, would be held for 146 days pursuant to N.J.S.A. 39:5-36 which provides that there be credited against the fines and costs the sum of $5 for each day of confinement. The county court, on its de novo determination, imposed three concurrent jail terms of 90 days for driving while on the revoked list, and with respect to the remaining charges, the court imposed fines totalling $250, with costs totalling $15. Payment of the fines and costs was suspended.

The sentences imposed by the county court could not be questioned in terms of severity. Defendant's record is bad. His involvements with the criminal law have been numerous over a span of some ten years. Apparently the disposition of the charges here involved was delayed because defendant served an intervening term in State Prison on an unrelated charge. Indeed defendant does not challenge the sentences in such terms, but rather contends the sentences are more severe than the sentences imposed in the municipal court and that the Constitution bars the imposition of greater punishment by an appellate tribunal.

Defendant says the county court sentences are more severe because, although the jail term is less than the 146 days he would experience under the sentences imposed by the municipal court if he did not pay the fines and costs, nonetheless the opportunity should have remained his to try to pay. He of course adds that he would find payment less painful

than 90 days in jail. We cannot quarrel with his evaluation of the relative severity of the sentences. This being so, we proceed to the next step in his argument, that the county court could not constitutionally increase the punishment imposed by the municipal court.

As to this, defendant refers to cases dealing with the imposition of greater punishment upon a retrial of a charge after a reversal of a conviction. In North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), starting with the proposition that the due process clause of the Fourteenth Amendment would be violated if a defendant were punished more severely on a retrial merely because he had exercised his right to appeal, the Court, to guard against such vindictiveness, held that a harsher penalty may not be imposed unless it "affirmatively" appears that the penalty was enlarged because of "objective information concerning identifiable conduct on the part of a defendant occurring after the time of the original sentencing proceeding," 395 U.S. at 726, 89 S. Ct. at 2081, 23 L. Ed. 2d at 670. See State v. Jacques, 52 N.J. 481 (1968), cert. denied, 395 U.S. 985, 89 S. Ct. 2138, 23 L. Ed. 2 d 774 (1969), where we held that an intervening conviction for another offense justified a greater punishment upon reconviction.

The State urges that Pearce does not apply because on appeal to the county court the "review" consists of a trial de novo as to both guilt and punishment. State v. States, 44 N.J. 285 (1965). Here the appeal did not involve guilt because defendant, having pled guilty in the municipal court, could appeal only with respect to the sentence. State v. Mull, 30 N.J. 231 (1959). Nonetheless the appeal required a de novo sentence, and the right to a de novo determination of punishment did not depend upon proof of error in the sentence imposed by the municipal court.

There are cases which hold Pearce does not apply to an appeal which consists of a trial de novo. Lemieux v. Robbins, 414 F.2d 353 (1 Cir. 1969), cert. denied, 397 U.S. 1017, 90 S. Ct. 1247, 25 L. Ed. 2d 432 (1969); People v. Olary,

382 Mich. 559, 170 N.W. 2d 842 (Sup. Ct. 1969); State v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (Sup. Ct. 1970); contra, Torrance v. Henry, 304 F. Supp. 725 (E.D.N.C. 1969). The thought is that where an appeal is a trial de novo, the initial trial is but a "dry run" if the accused chooses so to treat it, and since the right to and the result of the retrial do not depend upon the existence of error in the trial below, it cannot be said, as it may be with respect to a retrial after a reversal, that the defendant's successful demonstration of reversible error served to give the prosecution a chance to obtain a larger sentence.*fn1

But we need not pursue the inquiry in constitutional terms, for we are satisfied that as a matter of policy and apart from constitutional compulsion, a defendant who appeals from a municipal court should not risk a greater sentence. In reaching that conclusion, we are mindful of the reason for a trial de novo in these matters. The Legislature long ago provided for a retrial at the county level because of the weaknesses inherent in the system of local courts whose judges were locally appointed, served part-time, and frequently were not even members of the Bar. A structure of that kind could not command the complete confidence of the public. Although the municipal court of today is much improved over its ancestors, the structure remains unsound. There are 523 municipal courts. Their judges are still appointed locally, still serve part-time, and although membership at the Bar is now required (subject to a grandfather clause, N.J.S.A. 2A:8-7), this antiquated system of local

courts cannot inspire the confidence with which the public approaches our county courts. We intend no reflection upon the many judges of the municipal courts who work hard and conscientiously notwithstanding the shortcomings of the system itself. Rather we recognize that, so long as this system endures, the need remains to afford the litigant, frequently a stranger to the locality, the ...

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