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State v. Joho

Decided: November 26, 1980.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ALBERT JOHO, JR., DEFENDANT



Mandak, J.d.c. (temporarily assigned).

Mandak

The issue to be resolved in the instant case involves the interpretation and application of our statute dealing with conditional discharge for certain first drug-related offenses. N.J.S.A. 24:21-27. Specifically, this court must decide whether, after the expiration of defendant's period of supervisory treatment, it retains jurisdiction to entertain a motion by the State to terminate supervisory treatment and enter a judgment of conviction for the pending charge of unlawful possession of a controlled dangerous substance.

Defendant Albert Joho, Jr. was originally indicted on two separate counts for the unlawful possession of controlled dangerous substances, to wit, Butabarbital and Valium, in violation of N.J.S.A. 24:21-20.

On June 5, 1978, pursuant to a plea agreement between the State and Joho, the second count of the indictment was dismissed and defendant entered a guilty plea as to the unlawful possession of Butabarbital. A timely motion was made by defendant for the suspension of proceedings and implementation of supervisory treatment as authorized by N.J.S.A. 24:21-27, and on July 11, 1978 said application was granted to the effect that all proceedings in the matter were suspended and defendant was placed under the supervision of the chief probation officer of Passaic County for a period of two years, subject to the special rules of drug dependency.

The occurrence of various events about which there is no dispute leads this court to the inevitable conclusion that defendant has violated the terms of his supervisory treatment. Suffice it to say that defendant has moved on a number of occasions without informing his probation officer, remained out of the State of New Jersey without permission, failed to follow simple and appropriate instructions given by his probation officer and failed to report or advise of his whereabouts for the last four months of his period of supervisory treatment.

A review of defendant's case in June 1980 precipitated a decision by the Passaic County Probation Department to file this motion to terminate defendant's supervisory treatment and enter a judgment of conviction for the unlawful possession of Butabarbital. See N.J.S.A. 24:21-27(b). On July 11, 1980, however, defendant's two-year period of supervisory treatment ended before any affirmative action in this regard was taken by the Probation Department. It is clear that even though the decision to revoke defendant's period of supervisory treatment was reached well within the two-year period, the filing of the motion to terminate was not accomplished until August 4, 1980.

Counsel for defendant places principal reliance upon State v. Gibson , 156 N.J. Super. 516 (App.Div.1978), for the proposition that the court lacks jurisdiction to grant such a motion after the term of supervisory treatment has expired. In Gibson , the defendant was convicted of a drug-related offense which occurred while he was serving a two-year probationary term. However, both the conviction and the subsequent charge of violation of probation took place after the expiration of the two-year probationary term.

In examining the specific statutory language of N.J.S.A. 2A:168-4,*fn1 which sets forth the procedure to be followed and authorizes certain actions in the event of a probation violation, the court in Gibson concluded (at 531) that "in order for the

court to have jurisdiction to revoke probation and punish a probationer for violation of a probationary condition under N.J.S.A. 2A:168-4, the warrant must issue during the probationary period."

The substance of N.J.S.A. 2A:168-4 was, upon its repeal, replaced by N.J.S.A. 2C:45-2 and 2C:45-3 as part of the New Jersey Code of Criminal Justice which became effective on September 1, 1979. These new provisions, in providing for a fixed term of probation (N.J.S.A. 2C:45-2(a)) and for relief of a defendant's probationary obligations upon termination of the period of probation (N.J.S.A. 2C:45-2(c)), suggest strongly that the court in Gibson would reach a similar result under the Code. Additionally, the substantive provisions of N.J.S.A. 2C:45-3 are prefaced by the introductory language set forth in paragraph (a); which reads: "At any time before the discharge of the defendant or the termination of the period of . . . probation: . . . ." Clearly, this language evidences a legislative intent to codify the Gibson interpretation, to eliminate any ambiguity that may have previously existed under N.J.S.A. 2A:168-4, and to strengthen the basic concept that in the event of an alleged violation of probation, some affirmative action must be taken by the probation officer before the termination of the fixed probationary period.*fn2

The State, in turn, concedes that the Gibson decision has precedential value with relation to probation proceedings. It argues, however, that its application to the case at bar is unwarranted by distinguishing a situation where all proceedings have occurred after the probationary period has ...


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