On appeal from Superior Court, Law Division, Camden County.
Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.
A Camden County grand jury indicted Joseph W. Jones for second degree robbery. He was tried without a jury by Judge Talbott, who found him guilty. On July 6, 1981 Judge Talbott sentenced him to two years of probation, conditioned upon his obtaining a G.E.D. and maintaining employment. He was also fined $200.
Defendant argues that the State's appeal and any increase in his sentence are barred by the double jeopardy provisions of the United States Constitution, Amend. V, and the New Jersey Constitution (1947), Art. I, par. 11.
The State's appeal from a probationary sentence imposed upon defendant's conviction for a second degree crime is authorized by N.J.S.A. 2C:44-1 f(2), which provides:
(2) In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted. If the court does impose sentence pursuant to this paragraph, or if the court imposes a non-custodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.
The double jeopardy provisions of the Federal and New Jersey Constitutions have been construed to shield defendants from multiple punishments for the same offense and multiple
prosecutions. See, e.g., United States v. Wilson, 420 U.S. 332, 343, 95 S. Ct. 1013, 1021-1022, 43 L. Ed. 2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969); Ex parte Lange, 85 U.S. 163, 21 L. Ed. 872 (1874); State v. Ryan, 86 N.J. 1, 10 (1979), cert. den. 454 U.S. 880, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981). This protection has usually been invoked by courts when multiple punishments were imposed by the original sentencing court, see, e.g., State v. Williams, 167 N.J. Super. 203, 206 (App.Div.1979), aff'd 81 N.J. 498 (1980), this because the common law history of double jeopardy protection reveals that it was not directed against appeals by the government. United States v. Wilson, 420 U.S. at 342, 95 S. Ct. at 1021.
The United States Supreme Court, in United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980), upheld 18 U.S.C.A. § 3576, which permits federal prosecutors to appeal sentences imposed upon "dangerous special offenders" under specified circumstances. 449 U.S. at 143, 101 S. Ct. at 440. Since criminal sentences should not be accorded as much "constitutional finality" as acquittals, the court concluded that "the Government's taking a review of respondent's sentence does not in itself offend double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence." 449 U.S. at 132, 101 S. Ct. at 434.
While our courts are free to construe corresponding state constitutional provisions more expansively than the United States Supreme Court has construed the Fifth Amendment's double jeopardy provision, cf. State v. Johnson, 68 N.J. 349, 353 (1975) (construing constitutional protections against unlawful search and seizure), there would be no precedent for a holding that an appeal brought pursuant to N.J.S.A. 2C:44-1 f(2) violates N.J. Const. (1947), Art. I, par. 11. New Jersey's double
jeopardy provision is significantly narrower than that contained in the United States Constitution.*fn1
Although the New Jersey Supreme Court has not yet had to determine the constitutionality of N.J.S.A. 2C:44-1 f(2), this court, citing DiFrancesco, has upheld the provision as not violative of the protection against double jeopardy. State v. Farr, 183 N.J. Super. 463, 470 (App.Div.1982) (appeal nevertheless dismissed because jeopardy had already attached ...