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State v. Robinson

Decided: March 12, 1976.

THE STATE OF NEW JERSEY
v.
STANLEY ROBINSON, DEFENDANT



Patrick J. McGann, Jr., J.s.c.

Mcgann

Defendant seeks an order changing his present custodial sentence into one to be served in "a custodial or non-custodial treatment or rehabilitation program for drug * * * abuse" in accordance with R. 3:21-10(b).

On February 7, 1975, pursuant to a plea agreement, defendant was sentenced to not less than five nor more than seven years in the New Jersey State Prison concurrently on each of three counts of forgery. He promptly appealed the sentence he had agreed to accept. While the appeal was pending he moved the trial court, on April 14, 1975, for reduction of the sentence. No reasons were advanced for the relief sought. That motion was denied because at that point the trial court lacked jurisdiction to entertain it. See R. 2:9-1(a). Thereafter, on August 29, 1975, while the appeal was yet pending, defendant filed a motion for transfer to a drug treatment program. The documentation required by R. 3:21-10(c) was not submitted. See State v. Davis , 68 N.J. 69, 85 (1975). That motion was denied without prejudice on October 16, 1975.

The original sentence was affirmed on November 6, 1975. This present motion was filed on January 16, 1976 -- well beyond the 20-day limitation under R. 3:21-10(a) but obviously within the "at any time" language of R. 3:21-10(b), if "at any time" is to be read literally. If "at any time" may not be read literally but does have a fixed limit, then a determination must be made whether that limit has been exceeded. In this case, I determine that there is a limit, that the motion is beyond that limit and that this court is without jurisdiction to entertain the motion or to grant the relief sought.

R. 3:21-10 deals with a court's power to change its own sentence. It has a history. Knowing that history is essential to understanding the limitation on that power and to determining what "at any time" means. In State v. Kowalczyk , 3 N.J. 231 (1949), Chief Justice Vanderbilt reviewed that history. Kowalczyk had been sentenced on November 22, 1948. He appealed and the judgment of conviction was affirmed on October 24, 1949. When he surrendered himself to begin serving his sentence, the trial judge on November 16, 1949, over objection of the State, suspended the sentence originally imposed. The State appealed and argued that the judge simply had no power to do so. A unanimous Supreme Court agreed; reversed the trial court and reinstated the original sentencing, holding:

At common law the power of a trial judge to alter a sentence expired with the term of court at which the sentence had been imposed, State v. White , 103 N.J.L. 153 (E. & A. 1926); See also 1 Chitty on Criminal Law 721. This rule, however, was never a satisfactory one because the extent of the judge's power in the individual case was variable, depending upon whether the judgment was entered early or late in a term. Accordingly the Legislature, after various experiments, in 1928 (P.L. 1928, c. 231) fixed thirty days from the date of conviction as the time within which the judge might act in place of the indefinite rule of the common law, R.S. 2:190-15. With the abolition of three terms of court a year on the promulgation of our new Rules and the substitution therefor of an annual term commencing each September (Rules 1:1-1, 2:2, and 3:102-2), Rule 2:7-13 was adopted extending the power of the

judge to resentence a defendant "within 60 days from the date of the judgment of conviction." [at 233]

The "legislative experiments" mentioned in the above passage were these:

L. 1898, c. 237 § 55.

After conviction and sentence, the court before which such conviction was had, upon the application of the defendant for a new trial, shall have power, at any time during the term in which the judgment is entered , to open and vacate the same and grant a new trial, and discharge the defendant from custody upon bail, pending such new trial, or may, upon the application of the defendant, or on its own motion, open and vacate the judgment entered on any conviction and re-sentence the defendant, as right and justice may seem to require, and discharge the defendant from custody upon bail pending such re-sentence. [Emphasis supplied]

L. 1921, c. 236 § 1 amended the above to read as follows:

After conviction and sentence the court before which such conviction was had upon the application of the defendant for a new trial shall have power at any time within the period of six months from the date of the entry of such conviction, to open and vacate the same and grant a new trial and discharge of the defendant from custody upon bail, pending such new trial, and may also at any time within the period of six months from the date judgment is entered , upon application of the defendant, or on its own motion, open and vacate the judgment entered on any conviction and resentence the defendant, as right and justice may seem to require and discharge the defendant from custody upon bail, pending such resentence; provided, no writ of error is pending to review such judgment. [Emphasis supplied]

Thus, the Legislature amended the common law power of a court to change its own judgment of conviction from the variable time period of the "before the end of the term" concept to a fixed period beginning with the entry of the judgment. The end result was the same, however. Once the period had run the court was powerless.

L. 1928, c. 231, again amended § 55 to read as follows:

After conviction and sentence the court before which such conviction was had upon the application of the defendant for a new

trial shall have power at any time within the period of six months from the date of the entry of such conviction, to open and vacate the same and grant a new trial and discharge the defendant from custody upon bail, pending such new trial, and may also at any time within the period of thirty days from the date judgment is entered, but not thereafter , upon application of the defendant, or on its own motion, open and vacate the judgment entered on any conviction and resentence the defendant, as right and justice may seem to require and discharge the defendant from custody upon bail, pending such resentence; provided, no writ of error is pending to review such judgment. [Emphasis supplied]

By that change the Legislature drastically reduced the time during which a court had the power to resentence a defendant from six months to 30 days after the judgment of conviction. Such was the state of the law at the time the 1947 Constitution was adopted (R.S. 2:190-15).

To speak in terms of a court's "power" to alter or change a sentence previously imposed is to speak of its jurisdiction to act. A court cannot decide for itself the scope of its jurisdiction. Jurisdiction is a matter of substance, not procedure.

Jurisdiction over the subject matter is the power of a court to hear and determine cases of the class to which the proceeding in question belongs. It rests solely upon the court's having been granted such power by the Constitution or by valid legislation, and cannot be vested by ...


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