Lynch, Ackerman and Larner. The opinion of the court was delivered by Larner, J.A.D.
On May 29, 1973 defendant was sentenced on a plea of guilty to a charge of receiving stolen property. The judge imposed a sentence to State's Prison of two years minimum -- three years maximum. The custodial sentence was suspended and defendant was placed on probation for five years.
On July 11, 1974 defendant was found guilty of violation of probation and at that time the same judge imposed a sentence for that violation of one year in the Middlesex County Workhouse, allowing credit of 76 days for time already served in jail. In addition, the judge noted at the time of sentencing that the original five-year probation sentence was still viable and the judgment in the violation proceeding includes the following provision: "Placed on probation for 5 years starting from May 29, 1973."
Defendant has completed his service of the custodial sentence and now attacks the legal validity of the probationary portion of the sentence imposed on July 11, 1974. He urges that the probationary sentence accompanying the custodial sentence for violation of probation is void because of the absence of authority of the judge to impose a probation sentence unless it is accompanied by the suspension of a custodial sentence.
A brief review of the law relating to sentencing alternatives is appropriate. At common law the imposition or execution of a sentence could be suspended but "there could not be suspension of part of a sentence nor a fragmentary imposition of sentence." Adamo v. McCorkle , 26 N.J. Super. 562, 567 (App. Div.), rev'd on other grounds 13 N.J. 561 (1953), cert. den. 347 U.S. 928, 74 S. Ct. 531, 98 L. Ed. 1080-81 (1954). Hence, the judge had the alternative of either imposing a custodial sentence or suspending the sentence
in its entirety. State v. Braunstein , 5 N.J. Misc. 243, 136 A. 199 (Sup. Ct. 1927).
With the advent of the probation statutes courts were granted the additional power to place a defendant on probation for a period of not less than one nor more than five years. N.J.S.A. 2A:168-1 et seq. With respect to sentences to county institutions only, statutory authority was granted to permit a "split" sentence -- that is, incarceration for a designated portion of the sentence and release on probation before the full sentence is served. N.J.S.A. 2A:164-16; Bonilla v. Heil , 126 N.J. Super. 538, 543 (App. Div. 1974). This means, of course, that the unserved portion of the sentence is suspended. And in connection with sentences to county institutions a violation of probation exposes a defendant to a resentence up to the remaining portion of the sentence originally pronounced. In cases involving sentences to state institutions there is no authority for imposing a split sentence,*fn1 and if a state prison sentence is suspended in toto with a period of probation, violation of that probation may subject the defendant to a sentence up to the maximum allowed by law for the original offense. N.J.S.A. 2A:168-4; see also, State v. Pallitto , 107 N.J. Super. 96 (App. Div. 1969), cert. den. 55 N.J. 309 (1970); State v. Fisher , 115 N.J. Super. 373 (App. Div. 1971); State v. Wall , 126 N.J. Super. 594 (App. Div. 1974).
With the foregoing background we turn to the specific issue raised by defendant. Is the probation sentence of July 1974 imposed for the violation of probation included in the May 1973 sentence valid in the absence of any suspension of the county institution incarceration in whole or in part?
N.J.S.A. 2A:168-1 treats probation as a counter-part of suspension of a custodial sentence. It reads:
As observed by this court in Adamo v. McCorkle, supra:
Probation is not a sentence in itself but rather is a device that, among other things, designates a period during which the imposition or the execution of sentence is suspended and the convicted person is permitted to continue at large upon stated conditions upon the violation of which he makes himself liable to imprisonment. It plainly appears from the reading of N.J.S.A. 2A:168-1 and 4 that the ...