On appeal from Monmouth County Court.
Bischoff, Botter and Dwyer. The opinion of the court was delivered by Botter, J.A.D.
[171 NJSuper Page 432] This appeal concerns a defendant who served part of a State Prison sentence before being released on probation for drug treatment pursuant to R. 3:21-10(b). Defendant thereafter violated probation. The issues are (1) whether the trial judge could properly sentence or resentence defendant after the probation violation to a greater sentence than defendant was serving when he was placed on probation and (2) whether defendant is entitled to credit for time spent on probation. State v. Cunningham , 143 N.J. Super. 415 (App.Div.1976), with which we agree, upheld a higher sentence imposed after violation of probation in similar circumstances. However, State v. Williams , 167 N.J. Super. 203 (App.Div.1979), certif. granted 81 N.J. 272 (1979), held that a defendant who was released on probation after serving part of his sentence has a constitutional right to credit against his remaining prison term for time spent on probation. We reach a different result as to this issue in the case at hand.
The beginnings of this case are found in the guilty pleas entered by defendant to two indictments and one accusation charging him with five counts of breaking and entering with intent to steal and three counts of larceny. In addition, defendant pleaded guilty to the disorderly persons offense of stealing charged in a municipal complaint. As a result, on January 4, 1974 defendant was sentenced to State Prison for concurrent terms, the longest being three to five years. A concurrent six-month term in the Monmouth County Correctional Institution was imposed for the disorderly persons offense. Defendant was given credit for nine days spent in custody. In an unreported opinion we upheld the sentences in an appeal in which defendant urged that they were excessive.
After serving seven months in custody, defendant's motion under R. 3:21-10(b) to suspend his sentences was granted as of August 1, 1974, and he was placed on probation and transferred to a drug treatment center where he resided until some time in September 1974. Thereafter, in February 1977 defendant was cited for violating probation. He pleaded guilty to two of the three charges, namely, abscond from probationary supervision and failing to report since January 5, 1976, and changing his residence without permission and leaving the State for more than 24 hours without permission. Sentence was imposed pursuant to N.J.S.A. 2A:168-4. Defendant received various concurrent sentences for terms of five to seven years and two to three years, respectively, for the crimes charged in the indictments and accusation. In addition, he was sentenced to a concurrent term of six months in the Monmouth County Correctional Institution for the disorderly persons offense.*fn1 Defendant was given credit for 219 days spent in custody.
On this appeal defendant contends that, notwithstanding his violation of probation, the imposition of a higher sentence than that originally imposed after he had begun to serve his prison sentences contravenes the double jeopardy clauses of the United States Constitution and the Constitution of New Jersey. In addition, defendant contends that these sentences were excessive and an abuse of the trial judge's discretion.
Similar double jeopardy claims were considered and rejected in State v. Cunningham , 143 N.J. Super. 415 (App.Div.1976), and, as indicated above, we concur in its holding. Suspending a defendant's prison sentence, whether before any part of a custodial sentence has been served, as in In re White , 18 N.J. 449 (1955), or after part has been served, as in State v. Cunningham, supra , and placing a defendant on probation, is done pursuant to legislative authority. As part of the legislative scheme, N.J.S.A. 2A:168-4 permits the imposition of any sentence that could have been imposed for the underlying crimes after a probation violation has occurred. The court in In re White, supra , spoke of this sentence as a "new" sentence. 18 N.J. at 456. Surely, it is a sentence that replaces the original sentence, so that the original sentence must be viewed as provisional or tentative in nature when it has been suspended in part or in whole and probation imposed. See Roberts v. United
States , 320 U.S. 264, 274, 64 S. Ct. 113, 118, 88 L. Ed. 41, 47 (1943) (Frankfurter, J., dissenting).
In Roberts, supra , 320 U.S. at 274-275, 64 S. Ct. at 118-119, 88 L. Ed. at 46-47, Mr. Justice Frankfurter argued that it should make no difference whether the sentencing judge fixes a prison term which is suspended or fixes no term at all and merely suspends all sentencing before placing a defendant on probation. The third variant is the case at hand, where a prison term has been imposed and was partially served before the court, at defendant's request, suspended the balance of the term. In all three situations the legislative scheme attaches the same consequences to a violation: a new sentence can be imposed for the underlying crimes to the limits allowed by law. The probation violation permits a judge to revoke probation and compel execution of the original sentence; it also allows the judge to vacate the original sentence and impose any sentence that could have been imposed at the outset. In re White, supra , 18 N.J. at 454. When, as here, a defendant moves to suspend the prison term which he is serving and for release on probation, he must be taken to accept the probation laws that he invokes.
We recognize the general rule that double jeopardy attaches when a defendant begins serving his sentence, so that he cannot be subjected to multiple punishments for the same offense. Ex parte Lange , 85 U.S. (18 Wall.) 163, 174, 21 L. Ed. 872, 878 (1874); North Carolina v. Pearce , 395 U.S. 711, 730-732, 89 S. Ct. 2072, 2091-2092, 23 L. Ed. 2d 656, 672-674 (1969). Normally, a sentence which has begun cannot be set aside and a higher sentence imposed. Id.; State v. Matlack , 49 N.J. 491, 501-502 (1967), cert. den. 389 U.S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967). However, where on appeal defendant's conviction is reversed and his sentence vacated, defendant can be given a more severe ...