[135 NJSuper Page 90] The issue presented in this proceeding appears to be a novel one in this State. Defendant seeks relief by way of credit on his sentence after conviction for
the time he was on probation after sentence was imposed but during a stay thereof pending appeal.
He instituted these proceedings by filing a "notice of motion to correct sentence pursuant to N.J.S.A. 2A:168-1-4." Determining that the proceeding was more appropriately one for post-conviction relief, I considered it as if he had filed a petition for post-conviction relief pursuant to R. 3:22-1 et seq.
At the hearing it was disclosed that there is substantially no dispute as to the salient facts.
In July 1971 defendant Braeunig was convicted after a jury trial of conspiracy to violate the gambling laws and also of substantive gambling offenses. In August 1971 he was sentenced in the aggregate to two to three years at State Prison, Trenton, a fine of $1,000, costs and one year's probation following his release from custody.
Upon announcing his intention to appeal, he remained at liberty by complying with an order for increased bail. Appeal to the Appellate Division ensued.
None of the persons who participated in bringing about what appears in the following excerpt from the presentence report prepared for resentencing of defendant, which took place July 3, 1973, has any personal recollection of the events described therein. Nor is there any doubt as to the authenticity of the excerpt, which reads as follows:
On September 14, 1971, the Honorable Herbert Horn directed the subject, through his counsel and the probation office, that the defendant was instructed to report for his probation term and to pay his total fine of $1,000., and $650. costs during the period of that probation and during the time the appeal was being processed.
The defendant started reporting to the Probation Office as directed and on August 27, 1972, his probation was extended for one year to enable him to complete the payment on his fines and costs totalling $1650.00. On August 27, 1973 subject's probation was terminated with improvement.
The Appellate Division remanded the matter for several purposes, including resentencing, to eliminate certain doubts
which arose respecting same and to vacate the imposition of the costs. State v. Braeunig, 122 N.J. ...