On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Ard and Antell. The opinion of the court was delivered by Ard, J.A.D.
Defendant pleaded non vult to murder and was sentenced on July 3, 1973 to a term of not less than 14 nor more than 15 years in the New Jersey State Prison. In November 1974 he moved for a change of sentence pursuant to R. 3:21-10. A different judge heard the motion and suspended the unserved time of the sentence and placed the defendant on probation for a period of five years. As a special condition of probation, the judge required defendant to enter an in-patient drug rehabilitation program and to remain there until he completed the program. The State appealed this order, and this court reversed the order as a mistaken exercise of discretion. State v. Williams , 139 N.J. Super. 290 (App. Div. 1976), aff'd o.b. 75 N.J. 1 (1977).
During the pendency of the appeal defendant was released from prison and completed the in-patient drug rehabilitation program. He then continued as a probationer subject to the general rules of probation. After the decision of the Supreme Court he was returned to the New Jersey State Prison.
Upon his return to State Prison he filed a motion for a sentence credit for the time he spent on probation from November 20, 1974 until November 14, 1977, a little more than three years. After oral argument the judge who suspended the unserved portion of the original prison sentence denied the motion.
On appeal defendant asserts:
Point I Denial of defendant's motion for sentence credits violates
his constitutional and statutory rights against double
punishment for the same offense.
Point II Denial of defendant's motion for sentence credits deprives
him of equal protection of law.
We are satisfied that the failure to credit defendant with the time he spent on probation from November 20, 1974 until November 14, 1977 constitutes multiple punishment for the same offense and is therefore in violation of the ...