Conford, Handler and Meanor. The opinion of the court was delivered by Conford, P.J.A.D.
This is an appeal by the State and a cross-appeal by the defendant from an affirmance on trial de novo by the Bergen County Court of a conviction of defendant by the Bergen County District Court of driving a motor vehicle while under the influence of alcohol, contrary to N.J.S.A. 39:4-50(a). The affirmance was on the county district court transcript.
The county district court sentenced defendant as a second offender to the county jail for three months and revoked his driver's license for a period of ten years. However, the jail term was suspended and defendant placed on probation for two years. The State appealed the suspension, contending imprisonment for three months was mandatory under the statute, while the defendant cross-appealed the finding of guilt of the substantive offense. The County Court, on appeal, reaffirmed guilt and imposed the same suspended jail term as had the county district court.
Defendant's appeal requires no extended discussion. There was ample proof to support the fact findings below that defendant was under the influence of intoxicating liquor while operating his motor vehicle at the time and place charged.
As to the State's appeal, defendant contends that the State had no right to appeal the suspension of sentence, the case not falling within any of the provisions of R. 2:3-1(b), which purports to list the instances in which the State may appeal in criminal actions. Before addressing ourselves to that question, we hold that the action of the lower tribunals in suspending a prison sentence of a repetitive drunk-driving offender constituted error and an exercise of jurisdiction those courts did not possess.
The Supreme Court squarely ruled in State v. Johnson, 42 N.J. 146, 174-176 (1964), (1) that "on the face of and in the light of the legislative history of N.J.S.A. 39:4-50, imprisonment was intended to be mandatory on conviction for the second and all subsequent violations thereof" (at 174);*fn1 and (2) that no other statute extant, including N.J.S.A. 2A:168-1, the general probation statute, on which the county district court relied in the instant case, overcomes the unequivocal command of the motor vehicle law for mandatory imprisonment of a second offender. Although the State says the Johnson case was called to its attention, the county district court's supplemental opinion does not cite it. The County Court also by-passed Johnson, announcing its agreement with the county district court that imprisonment was discretionary with the court. It is elementary that a Supreme Court opinion construing a statute is binding on all lower courts so long as the statute remains unchanged. The Supreme Court has observed: "Trial judges are privileged to disagree with the pronouncements of appellate courts; the privilege does not extend to non-compliance." Reinauer Realty Corp. v. Paramus, 34 N.J. 406, 415 (1961).
Turning to the procedural question, we conclude that in the existing circumstances we have the right and duty on this appeal to vacate the illegal suspension of sentence and order the mandatory jail term to be served by the defendant. Either of two approaches justifies the determination: (1) defendant's cross-appeal brings the judgment of conviction and sentence before us, and permits us to correct an illegal sentence brought to our attention, even if it were conceded that the State had no right to appeal; (2) the State had the right to invoke the substance of the certiorari jurisdiction of the Superior Court, inherited under the Constitution of 1947
from the former Supreme Court, to superintend and correct the act of an "inferior" court beyond its jurisdiction. Neither approach entails a disturbance of the fundamental principle that the State may not have review of an acquittal of a defendant in a criminal case, see Newark v. Pulverman, 12 N.J. 105 (1953), or take an appeal which would again place a defendant in jeopardy. Both approaches would subserve due appellate superintendence of the orderly administration of justice by trial courts -- and here in a vital area of public policy. See State v. Macuk, 57 N.J. 1, 8 (1970).
It is well established that an illegal sentence is "correctible at any time," State v. Fisher, 115 N.J. Super. 373, 378 (App. Div. 1971); State v. Weeks, 6 N.J. Super. 395 (App. Div. 1950); State v. Strupp, 101 N.J. Super. 94 (App. Div. 1968); State v. Heslip, 99 N.J. Super. 97, 100 (App. Div. 1968), certif. den. 51 N.J. 570 (1968), cert. den. 393 U.S. 928, 89 S. Ct. 265, 21 L. Ed. 2d 265 (1968). In several of the cases cited the principle was applied by the court on an appeal to the Appellate Division by a defendant in criminal proceedings, although the illegality corrected concerned an aspect of the sentencing not brought in question by defendant. As stated in State v. Strupp, supra, an illegal sentence becomes "inoperative in [its] entirety and [is] properly vacated" (101 N.J. Super. at 98). In In Re Nicholson, 69 N.J. Super. 230 (App. Div. 1961) an illegal sentence was corrected on an appeal by the State.
Thus, the judgment of conviction and sentence being exhibited before the court on the defendant's cross-appeal, and the illegality in the sentence (the suspension) confronting the court on the face of the record, it becomes our right ...