Matthews, Seidman and Horn. The opinion of the court was delivered by Matthews, P.J.A.D.
Defendant appeals from an order entered on March 12, 1976 denying his motion for transfer to a drug program. R. 3:21-10(b) (1).
Defendant entered a plea of guilty to three counts of forgery, N.J.S.A. 2A:109-1, and on February 7, 1975, pursuant to a plea agreement, was sentenced to three concurrent terms of five to seven years in State Prison. While his appeal was pending defendant moved pro se on April 14,
1975 for reduction of sentence pursuant to R. 3:21-10(a). The trial judge denied the motion because the case was then pending before this court. R. 2:9-1(a).
On August 29, 1975 defendant filed a second motion pro se to reduce his sentence under R. 3:21-10(a), which was regarded as a motion for transfer to a drug treatment program under R. 3:21-10(b) (1). On October 16, 1975, after a hearing in which defendant was represented by counsel, the motion was denied without prejudice, because defendant had not complied with the documentation requirements of subsection (c). On November 6, 1975 this court affirmed defendant's conviction.
On January 16, 1976 defendant filed a third motion pro se to reduce sentence pursuant to R. 3:21-10(a), which again was considered to be a motion for transfer under subsection (b). The motion was denied on March 12, 1976. State v. Robinson , 140 N.J. Super. 459 (Law Div. 1976).
The trial judge noted that although the present motion was barred by the 20-day limitation under R. 3:21-10(a), it was "obviously within the 'at any time' language of R. 3:21-10(b), if 'at any time' is to be read literally." 140 N.J. Super. at 464. However, the judge found that a literal construction would seriously impair the stability of "the whole penal structure":
He found that expanding the 60-day period would constitute "an attempt through the rule-making power to change substantive law -- a procedure condemned in Winberry v. Salisbury ,"
and would infringe upon the executive's authority to pardon. At 469-470.
He concluded that in order to avoid the unconstitutional and undesirable results noted above, the rule should be interpreted as "appl[ying] to the exceptional case of the addict, but it [the motion] must be made 'at any time' within the fundamental 60-day period of limitation." At 472-473. Since defendant had not filed his motion within 60 days of the original sentence or within 20 days of this court's affirmance of the sentence, the trial judge denied the motion as being out of time. At 475.
This appeal followed, and because of the importance of the question presented we have granted leave to the Attorney General to ...