For reversal and remandment -- Justices Jacobs, Sullivan, Pashman and Clifford and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Clifford, J.
[64 NJ Page 465] We granted certification, 63 N.J. 501 (1973), to review the Appellate Division's affirmance of the county court's order of incarceration on reinstatement of a six month jail sentence for defendant's violation of probation. Placed squarely in issue is the applicability of this Court's decision in State v. DeBonis, 58 N.J. 182 (1971), which held that a defendant who appeals from a municipal court conviction may not receive a greater sentence in the county court. It is clear that prior to DeBonis a trial de novo in the county court involved not only the issue of guilt or innocence but also the exercise of the independent judgment of that court in the matter of sentence. State v. States,
44 N.J. 285, 293 (1965). We hold that the DeBonis rule does apply under the facts of this case and to all cases on direct appeal as of the date that decision was announced. This leads to a reversal of the judgment below.
In 1969 defendant, Herman Nash, was a teacher in Teaneck High School. His difficulties with the law arise out of an occurrence of March 6 of that year when he led a group of about 15 of his students into the principal's office in protest against a school policy under which lower-track, general science students were denied use of laboratory facilities. For more than eight years defendant had tried unsuccessfully to change this policy, but he had never been able to obtain regularly scheduled laboratories for this group of students, despite the fact that several such labs were scheduled each week for the better students.
His frustration led to the demonstration. No violence was involved but some disorder was created. The participants cleaned up the principal's office before leaving. However, the "sit-in" led to Nash's conviction in the Teaneck Municipal Court for the violation of N.J.S.A. 2A:170-28 (disturbing a place of assembly), N.J.S.A. 2A:170-31 (trespass), and N.J.S.A. 2A:170-26 (assault). He was fined $250 each on the first two charges and sentenced to a thirty day jail term on the assault charge. These convictions were appealed to the county court, which conducted a plenary trial de novo by order of the assignment judge on defendant's application.
The county court dismissed the assault and trespass charges but reconvicted defendant under N.J.S.A. 2A:170-28 for disturbing a place of assembly. However, instead of receiving a fine as originally imposed, he was sentenced on December 12, 1969 to a six-months jail term, suspended in favor of a three-year probationary period. An appeal taken from this conviction was argued in the Appellate Division on January 11, 1971. On April 8, 1971, this Court's decision in State v. DeBonis, supra, was handed down. On May 12, 1971 the Appellate Division affirmed defendant's conviction
and certification was denied by this Court on July 7, 1971, 58 N.J. 597.
For reasons not explained in the record before us Nash was not called to report to the probation office until March 24, 1972. Although he did appear punctually, he refused "as a matter of principle" to sign the rules and regulations, as required by R. 3:21-7. However, he agreed to abide by the conditions of his probation, and asserted, without contradiction, that he had in fact been abiding by them since the time of his sentence in December 1969. The only special condition which had been imposed upon him was that he not attend board of education meetings in Teaneck during his probationary period. After a hearing on April 28, 1972 on a motion to modify the sentence, the county court revoked defendant's probation and re-imposed the jail term, solely as a consequence of his refusal to sign the probation department rules.
Thereafter, on May 5, 1972 the defendant appealed the probation revocation to the Appellate Division, petitioning also for a stay of his sentence, which was granted. On May 22, 1972 he petitioned the county court for post-conviction relief, based on DeBonis. That petition was subsequently dismissed. The Appellate Division, on July 13, 1972, granted a motion to consolidate an appeal from the denial of the post-conviction relief with the appeal from the probation revocation, in order, as it said, "to dispose of all issues once and for all." As indicated hereinabove, that court, in an unreported opinion handed down on April 10, 1973, affirmed both the conviction and sentence of the county court and also the revocation of probation. Our conclusion that DeBonis applies to this defendant results in the vacating of the jail sentence.*fn1
While the Appellate Division speaks in terms of the non-retroactivity of DeBonis, it is clear that the decision below is simply a determination that the DeBonis rule should not be applied in the particular circumstances of this case, not a declaration of its non-retroactivity as a matter of legal principle or policy. That Court reasoned that since Nash "had an ample opportunity effectively to raise the DeBonis ruling in his direct appeal from the conviction and sentence and in his application for certification which followed, he should not be again permitted an additional opportunity to argue the matter * * *."
The issue of the retroactivity of DeBonis clearly intrudes itself into this case, just as it did in State v. Koch, 118 N.J. Super. 421 (App. Div. 1972), final judgment entered in 119 N.J. Super. 184 (App. Div. 1972). The court there was faced with the problem of retroactivity of Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967) (non-activation of a repetitive-offender type statute to enhance punishment where the prior convictions were uncounselled and there was no ...