The state moves to dismiss defendant's motion made pursuant to R. 3:21-10(a) for reduction of his sentence of a total of 10-15 years imposed on November 10, 1972 following a conviction of armed robbery.
The procedural history after sentence reflects that defendant timely appealed to the Appellate Division, which unanimously affirmed in an unreported per curiam opinion filed on February 7, 1974. The contentions on appeal appear to have been directed solely to alleged trial errors since the Appellate Division opinion does not pass judgment on the sentence imposed.
A notice of petition for certification was filed on February 25, 1974, and the Supreme Court denied the petition by an order filed May 14.
Defendant's pro se motion for reduction of sentence pursuant to R. 3:21-10(a) was misfiled with the Camden County Clerk on May 28 and forwarded to this court for disposition by letter received June 4.
No challenge is directed by the State to the delay beyond 20 days occasioned by the misfiling of the motion; rather, the attack is channeled toward defendant's failure to file such motion within 20 days after the filing of the Appellate Division opinion and judgment -- a contention with which this court does not agree.
R. 3:21-10(a) requires that a "motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction, or, if an appeal is taken within the 60 days, not later than 20 days after the date of the judgment of the appellate court." However, the rule is silent as to the effect on the time limitations therein resulting from the timely filing of a notice of petition for certification.
Prior to the September 1969 revision, the predecessor rule (R.R. 3:7-13(a)) spoke to a 20-day filing limit after "issuance of the mandate by the appellate court," and under then R.R. 1:9-1 and 2:9-1 it was clear that the timely filing of a further notice of appeal or notice of petition for certification
automatically stayed the issuance of the mandate. State v. Montalbano, 94 N.J. Super. 152 (App. Div. 1967).
Therefore, either the granting of the petition for certification or the filing of a notice of appeal as of right squarely put the defendant again in the appellate process, thus preserving his right to file a motion for reduction of sentence within 20 days of the issuance of the mandate by the Supreme Court. Conversely, the denial of a timely petition for certification recommenced the running of the time for issuance of the Appellate Division mandate and still left defendant his 20-day period after actual issuance of the mandate. An order of denial of a petition for certification, however, was held not to be a "mandate" within the intendment of R.R. 3:7-13(a). State v. Montalbano, supra at 155.
Notwithstanding the foregoing, the State asserts that under the 1969 rules revision, R. 2:11-3 replaced the former R.R. 1:9-1 and 2:9-1 and thereby eliminated the mandate and also the automatic stay features consequent upon the timely filing of either a further notice of appeal or a notice of petition for certification, and further urges that since, under the same revision, R. 3:21-10(a) also eliminated any reference to "mandate" and substituted "judgment" of the appellate court, a defendant waives his right to move for reduction of sentence unless such motion be made within 20 days of the judgment of the Appellate Division, the rule containing no provisions as to the effect to be given to certification proceedings.
The fallacy of this contention is apparent when one recognizes the premise that a defendant will again be in the appellate process upon the timely filing of a further notice of appeal as of right or upon the granting of a petition for certification, and that "judgment of the appellate court" under R. 3:21-10(a) encompasses both judgments of the Appellate Division and the ...