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State v. Burke

Decided: February 18, 1983.

STATE OF NEW JERSEY, PLAINTIFF,
v.
RUSSELL BURKE, DEFENDANT



McGann, J.s.c.

Mcgann

Is the sentencing framework of the New Jersey Code of Criminal Justice constitutional in permitting, as it does, a custodial sentence for a violation of a prior probationary sentence which had included a condition of serving custodial time in the county jail? The answer is important for the question implicates a procedure routinely followed. For the reasons set forth below, those legislative provisions are held constitutional.

On December 11, 1981 Russell Burke was sentenced on his plea of guilty to credit card theft. He was placed on probation for a period of one year and, as a condition of probation, directed to serve the first six months in the County Correctional Institution. Costs of $14 and a penalty of $25 payable to the Violent Crimes Compensation Board were imposed. Credit was given for 41 days previously spent in jail. Two associated counts of the indictment were dismissed.

Burke served a total of 138 days (including presentence credit) when, with good time credit, he was discharged from custody and placed under active probation supervision. Thereafter, on January 7, 1983 he pleaded guilty to violating his probation in that on May 30, 1982 he committed the crime of unlawful possession of L.S.D., for which he was sentenced to four years to the custody of the Commissioner.

As a probation violator he was sentenced to 18 months to the custody of the Commissioner of Corrections (consecutive to the above) and given credit for 138 days previously served.*fn1 This

was directed to be served consecutively to the sentence imposed for the crime which led to the violation.

There can be no question that the Legislature authorized the procedure followed. N.J.S.A. 2C:43-2, in pertinent part, provides:

a. . . . all persons convicted of an offense . . . shall be sentenced in accordance with this chapter.

b. . . . subject to the applicable provisions of the code, the court . . . may sentence him (i.e. a person who has been convicted of an offense) as follows:

(2) To be placed on probation and, in the case of a person convicted of a crime to imprisonment for a term fixed by the court not exceeding 180 days to be served as a condition of probation. . . .

N.J.S.A. 2C:45-1(c) provides:

When the court sentences a person who has been convicted of a crime to be placed on probation, it may require him to serve a term of imprisonment not exceeding 180 days as an additional condition of its order. . . . 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 ...


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