Michels, Morgan and Milmed.
The State appeals from a grant of post-conviction relief.
On March 23, 1964 defendant pleaded guilty to an indictment charging him with maintaining a gambling resort. N.J.S.A. 2A:112-3. On May 29, 1964 he was sentenced thereon to the State Prison for a term of one to two years. Execution of the sentence was suspended and he was placed on probation for three years and required to pay a fine of $2,500. The sentence was amended on June 19, 1964 to permit defendant to pay the fine in weekly installments of $20. On July 15, 1966 a charge against him for violation of probation was dismissed and probation was continued until May 29, 1969. N.J.S.A. 2A:168-4.
On March 21, 1973 defendant pleaded guilty to a charge that he violated probation in that he (1) failed to report to the probation officer on September 23, 1966 and subsequent dates; (2) failed to keep the probation officer advised as to his whereabouts and activities, and (3) failed to make adequate payments on the fine. He was sentenced to the State Prison for a term of one to two years. The balance of the fine previously imposed upon him ($1,408) was remitted. After his release on parole he filed a petition for post-conviction relief. At the hearing on the petition he contended that the court had no authority to revoke probation and sentence him (on March 21, 1973) to imprisonment. The basis of his claim was that at the time the five-year period of probation had expired and could not be extended since he did not "abscond while under supervision" within the meaning of that term as used in N.J.S.A. 2A:168-1.
In regard to the violation of probation proceedings, no claim is made that the due process requirements of Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (May 14, 1973), were not fulfilled. The single issue here is whether at the time of revocation and imposition of the custodial
sentence the trial court had jurisdiction over the defendant as a probationer.
The facts in the case are not in dispute. On September 23, 1966, with more than one-half of the five-year term of probation still remaining, defendant discontinued reporting to his probation officer and failed to keep his probation officer advised as to his whereabouts and activities. Although he was aware of his reporting obligations while on probation, he never informed his probation officer of three changes in residence and one change in employment. In 1966 he changed his residence in the City of Passaic. In 1969 or 1970 he moved to Newark. In 1972 he moved to a new address in the City of Passaic. In 1970 he changed his employment from Wyckoff Cleaners in Wyckoff to Colonial Cleaners in Paterson. Although he knew of his obligation to continue the installment payments on account of the fine imposed upon him, the last payment he made was on February 23, 1967, in the amount of $10, leaving an unpaid balance of $1,408.
On February 27, 1973 a representative of the Passaic County Probation Department noticed defendant's name on a Passaic County trial list indicating that he was scheduled for trial on another criminal charge. He was then charged with violation of probation. When he pleaded guilty to the charge of violation of probation on March 21, 1973, he informed the court, through his attorney, that
At the conclusion of the hearing on the petition for post-conviction relief, the trial judge found that there was "no evidence from which the Court could conclude that the defendant had made any conscious effort to avoid legal process"; that "there was no effort made by the Probation Department to seek to ascertain his whereabouts and there
was absolutely no evidence adduced that he was attempting to conceal himself or that he made some conscious effort to absent himself and to defeat the service of process," and that "under the statute, there was no proof that petitioner had absconded." The judge thereupon reversed the judgment imposing the custodial sentence; and ordered the entry of a judgment of "not guilty of violation ...