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State v. Tully

Decided: March 18, 1977.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOHN PATRICK TULLY, DEFENDANT-RESPONDENT



Matthews, Seidman and Horn. The opinion of the court was delivered by Matthews, P.J.A.D.

Matthews

The State appeals from an order denying its motion to dismiss defendant's application for reduction of his sentence under R. 3:21-10(a).

On January 7, 1975 defendant entered retraxit pleas of guilty to various criminal charges as part of a plea agreement with State authorities under which he was to become a State's witness in the prosecution of the "Campisi" indictment (a series of prosecutions involving nine

defendants charged with murder, conspiracy to commit a series of armed robberies and to engage in gambling and drug activity). On July 30, 1975 defendant was sentenced to an aggregate term of 12 to 15 years imprisonment, to run concurrently with a sentence of 12 years imposed on the previous day by the United States District Court on unrelated charges. The sentence by the State court was to be effective as of August 28, 1975, the date that defendant was to be surrendered to federal authorities.

On August 8, 1975 defendant filed a motion for reduction of sentence, R. 3:21-10(a), claiming that the sentence imposed was not in accordance with the "plea bargain" agreement. Affidavits in support of the motion were submitted on the hearing date, October 9, 1975, before the sentencing judge. On that date defendant dismissed his attorney and moved for assigned counsel. The trial judge adjourned the proceedings without date, partly because new counsel had to be appointed and also because of the special circumstances of defendant's confinement in federal prison. Apparently, these special circumstances included the fact that defendant was under special protection.

On April 29, 1976 -- 198 days beyond the 75-day limitation period of R. 3:21-10(a) -- the hearing on defendant's motion reconvened and was continued until May 24, 1976. The State then moved that defendant's motion be dismissed as being out of time.

On July 2, 1976 the trial judge, in a written opinion, denied the State's motion to dismiss, finding that (1) the State was estopped from claiming the time limitations of R. 3:21-10(a) and (2) the informal agreement of April 29, 1976, between the State and defendant to consider a reduction of sentence to comport with the maximum federal sentence "constituted a de facto consent and was a proffer of a joint application" within the meaning of R. 3:21-10(b)(3). The trial judge implied that the time restrictions of R. 3:21-10(a) are directory in nature and should not be an absolute bar where, as here, "defendant and his

counsel were lulled into a feeling that this restriction in the rule would be waived because of the special circumstances of Tully's situation." Apparently, these special circumstances included the fact that (a) defendant's confinement in a federal prison under special protection was, in part, a cause for the delay, and (b) "without fault on his part," defendant would "be deprived of an opportunity to advocate and advance 'the equities' of his case."

R. 3:21-10(a) contains a 60-day time limitation for filing and a 75-day requirement for disposition of applications to reduce or change a sentence:

Except as provided in paragraph (b) hereof, a motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction , or, if a direct appeal is taken, not later than 20 days after the date of the judgment of the appellate court. The court may reduce or change a sentence, either on motion or on its own initiative, by order entered within 75 days from the date of the judgment of conviction or, if a direct appeal ...


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