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State v. Perwin

Decided: July 1, 1975.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STANLEY J. PERWIN, DEFENDANT-APPELLANT



For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Schreiber, J.

Schreiber

Stanley Perwin was indicted with others for conspiring to defraud the Maryland Casualty Company by faking three automobile accident claims between 1966 and 1968. He was acquitted of these charges.

Subsequent to that indictment Perwin was indicted on three counts of false pretenses and separately indicted for a

conspiracy to violate the false pretense statutes. The factual context of these indictments was that Perwin and others defrauded the Maryland Casualty Company by faking a fourth automobile accident in 1967. Perwin was convicted on all four counts. On February 16, 1971 he received custodial sentences and was fined $1,000 on each count or a total of $4,000.

Perwin paid the $4,000 fine to the Treasurer of Essex County. He appealed to the Appellate Division, which affirmed. 117 N.J. Super. 315 (App. Div. 1971). Certification was denied (60 N.J. 138 (1972)) as was his petition for certiorari to the United States Supreme Court. 409 U.S. 862, 93 S. Ct. 151, 34 L. Ed. 2d 109 (1972).

He filed a petition with the United States District Court for a writ of habeas corpus. It found that Perwin was involved in only one conspiracy and having been acquitted of that conspiracy, he had been placed in double jeopardy when charged with the same conspiracy in the second trial. This violated Fifth Amendment rights which he had derived through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The District Court directed that execution of the writ be stayed for 45 days to enable the County Prosecutor to appeal the order, retry the defendant on the three counts of false pretenses, or do both. The Prosecutor chose to drop the matter.

Perwin then sought to force the County Prosecutor to return to him the $4,000 fine under N.J.S.A. 2A:166-13 which mandates return of fines paid when a defendant has appealed and obtained a decision terminating the matter in his favor. The trial judge denied the request on the grounds that the writ of habeas corpus was limited to compelling the warden to release Perwin from custody and that the issuance of the writ was "not tantamount to a decision in favor of the defendant terminating the State's case against him," and that the statute is not applicable. The

Appellate Division affirmed primarily on the same grounds. 131 N.J. Super. 435 (App. Div. 1974). We granted certification. 67 N.J. 90 (1975).

The Appellate Division correctly noted that the board of chosen freeholders was a necessary party and that the proceedings were improperly instituted. As did the Appellate Division, we shall consider the matter on its substantive merits.

The ultimate issue is whether Perwin is entitled to a return of the fine under N.J.S.A. 2A:166-13. The statute reads as follows:

"When a defendant in a criminal action has paid a fine upon being found guilty of an offense and has taken an appeal and obtained a decision in his favor terminating the case of the state against him, the board of chosen freeholders of the county wherein the trial ...


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