On appeal from the Superior Court, Law Division, Middlesex County.
Milmed, Joelson and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
Following his plea of guilty to escape (N.J.S.A. 2C:29-5(a)) defendant was sentenced to probation for a period of five years "and to be confined to the Middlesex County Adult Correction Center as a condition of that probation for a period of 180 days." This appeal challenges the further direction of the trial court that
Credit for time of 94 days may NOT be used for the condition of probation confinement of 180 days at the Adult Correction Center.
We find that the denial of the 94-day credit, for time spent in the county jail between arrest and sentencing, contravenes R. 3:21-8:
The defendant shall receive credit on the term of a custodial sentence for any time he has served in custody in jail or in a state hospital between his arrest and the imposition of sentence.
Although the trial judge did not address R. 3:21-8 in imposing the sentence, the State urges that it is not applicable here because the court imposed a probationary sentence and not a
"custodial sentence." We find that to be an unrealistic and inappropriate reading of the language and intendment of the rule.
N.J.S.A. 2C:43-2(b)(2) authorizes a sentence of probation and further allows, in the case of a person convicted of a crime, "imprisonment for a term fixed by the court not exceeding 180 days to be served as a condition of probation." Those provisions are restated in N.J.S.A. 2C:45-1(c) with this additional direction:
The term of imprisonment imposed hereunder shall be treated as part of the sentence, and in the event of a sentence of imprisonment upon the revocation of probation, the term of imprisonment served hereunder shall be credited toward service of such subsequent sentence.
In its commentary on these provisions*fn1 the Criminal Law Revision Commission noted that "the authorization of a sentence combining probation and imprisonment" is comparable to N.J.S.A. 2A:164-16, which authorized "split sentences" to county institutions. See 2 Final Report of the New Jersey Criminal Law Revision Commission (1971), at 314, 345.
Both in concept and in actuality, then, the probation "condition" entails a "sentence" of "imprisonment." That the imprisonment is accompanied by or encompassed within a probationary sentence does not deprive it of its character as a ...