On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
Matthews, Antell and Francis.
These are virtually identical appeals arising from convictions for violations of N.J.S.A. 39:4-50. The State appeals in both cases. Since the legal issue involved in each case is the same, we consolidate them for the purposes of this opinion.
Defendant was given a summons on March 8, 1982 for driving while under the influence of an intoxicating beverage. The case was heard in the Westville Municipal Court on July 14, 1982 where defendant was represented by counsel.
After testimony, the municipal judge concluded that defendant was guilty as charged, and further found that defendant had a prior offense and, therefore, found defendant guilty as a second offender and sentenced him to a fine of $500 plus $15 court costs and a revocation of his driving privileges for three years. Defendant was also placed on probation for one year and he was also required to give community service for the hourly equivalent of 30 days. The municipal judge also permitted defendant to reapply to the court for reinstatement of his driving privileges at the end of two years, if he had proof of sobriety.
Defendant thereafter appealed to the Law Division. The appeal was heard de novo before Judge Bullock who also found defendant guilty of driving under the influence. He also found that it was a second offense but raised the issue, sua sponte, as to whether or not defendant was represented by counsel on his prior conviction.
Because he found there was no proof that defendant was represented by counsel at the prior proceedings he decided to sentence defendant as a first offender. He therefore sentenced defendant to six months revocation of his driving privileges together with a fine of $250 and costs of $15.
Terrence Buckley was arrested for driving under the influence of alcohol. He was tried and found guilty of driving under the influence in violation of N.J.S.A. 39:4-50 in the Harrison and South Harrison Townships Intermunicipal Court. Defendant was represented by counsel at that proceeding.
At sentencing the prosecutor informed the judge that defendant had a prior offense in 1968 and a prior offense in 1980. The prosecutor and defendant's attorney agreed that under the provisions of and for the purpose of sentencing under N.J.S.A. 39:4-50, the current violation was defendant's second offense. The judge imposed a fine of $500 with $15 court costs on
defendant and revoked his driver's license for two years. Defendant was placed on probation for one year and he was sentenced to do 30 days of community service.
Defendant had a de novo hearing before Judge Bullock in the Law Division, Gloucester County. He was again represented by counsel. The judge found defendant guilty of driving while under the influence. The judge raised a question, however, concerning the sentencing of defendant as a second offender. He was informed by defendant's counsel that the basis for finding that defendant was a second offender was an abstract from the Department of Motor Vehicles which indicated that Mr. Buckely had a previous offense.
The judge noted that there was nothing in the record to indicate that defendant had been represented by counsel at the time of his prior conviction, and refused to sentence defendant as a second offender under N.J.S.A. 39:4-50. Defendant was sentenced as a first offender, and received a $250 fine with $15 court costs. Defendant's license was revoked for six months.
The issue is identical in both cases. The convictions are not being challenged; the State challenges the sentences ...