Marzulli, Coleman and Yanoff. The opinion of the court was delivered by Marzulli, J.s.c. Coleman, J.s.c. (dissenting).
On December 16, 1975 defendant was found guilty of felony murder. Immediately thereafter a sentence of life in prison was imposed. He is presently serving that sentence.
Defendant brings this motion for resentencing under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 d(2). Defendant contends he has been sentenced to a maximum term of imprisonment for an offense committed prior to the effective date of the Code, which exceeds the maximum established by the Code for such offense. Defendant argues the maximum for murder under the Code is 30 years, although he admits under N.J.S.A. 2C:43-7, the extended term provision, a sentencing judge has discretion to impose a life sentence. Defendant correctly states that under Title 2A there was no such discretion, the court being compelled to impose a life sentence upon conviction of murder in the first degree. N.J.S.A. 2A:113-1, 113-4; State v. Funicello , 60 N.J. 60 (1972), cert. den. sub nom. New Jersey v. Presha , 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1976); State v. Corbitt , 74 N.J. 379 (1977), aff'd 439 U.S. 212, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978). Once defendant has been found guilty of murder in the first degree, the trial judge has no alternative except to "pronounce the prescribed, mandatory sentence of life imprisonment." A probation report should be prepared for the assistance of prison authorities. State v. Robinson , 139 N.J. Super. 58, 65 (App.Div.1976).
In endeavoring to determine whether this case qualifies for resentencing under the new Code, this court must decide whether the sentence defendant is serving is greater than the maximum established by the Code for such an offense. What is the meaning of the word "maximum" as it applies to murder under the Code?
N.J.S.A. 2C:11-3 b provides:
Murder is a crime of the first degree but a person convicted of murder may, notwithstanding the provisions of 2C:44-1 f, be sentenced by the court (1) to a term of 30 years of which the person must serve 15 years before being eligible
for parole, or (2) as in a crime of the first degree except that the maximum term for such a crime of the first degree shall be 30 years. Nothing contained in this subsection shall prohibit the court from imposing an extended term pursuant to 2C:43-7 for the crime of murder. [Emphasis supplied]
We note that a 30-year term is not mandatory, since even in murder cases sentence may be suspended. N.J.S.A. 2C:43-2 b.
N.J.S.A. 2C:43-7 a provides that the extended term for murder shall be for a specific term between 30 years and life. The extended term also is not mandatory and requires exercise of judicial discretion. Under N.J.S.A. 2C:44-6 e a defendant must be given notice and the court must state the grounds upon which it will rely to impose an extended term contemplated under N.J.S.A. 2C:43-7.
However, the Legislature recognized that murder was a unique offense because of its heinous nature. Therefore, it gave to the sentencing court greater latitude in imposing an extended term for murder by making the imposition of such an extended term discretionary with the trial judge, as opposed to satisfying the criteria set forth in N.J.S.A. 2C:44-3 as required in other cases.
Before comparing the maxima under Title 2A and Title 2C one must look to the underlying intent of the Code and to the consequences of any ruling made on the more than 100 life sentences which we will be required to review.
N.J.S.A. 2C:1-2, entitled "Purposes; Principles of Construction," provides in subsection b:
b. The general purposes of the provisions governing the sentencing of offenders are:
(1) To prevent and condemn the commission of offenses;
(2) To promote the correction and rehabilitation of offenders;
(3) To insure the public safety by preventing the commission of offenses through the deterrent influence of sentences imposed and the confinement of offenders when ...