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State v. Dachielle

Decided: April 23, 1984.

STATE OF NEW JERSEY, PLAINTIFF,
v.
DANIEL THOMAS DACHIELLE, DEFENDANT



Stern, J.s.c.

Stern

[195 NJSuper Page 42] Defendant's post appeal motion for change or reduction of sentence requires this court to consider the interrelation of R. 3:21-10(a) and (b). The real issue is whether defendant's application is truly a motion to change "a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse" which can be made at any time. R. 3:21-10(b)(1). Since September 13, 1982 trial courts have had no jurisdiction to consider post appeal motions for change or reduction of sentence unless the application falls within an exception embodied in R. 3:21-10(b). Absent such an exception the strict time limitations control and cannot be relaxed. R. 3:21-10(a). Enlargement is strictly prohibited, R. 1:3-4(c); see, e.g. Baumann v. Marinaro, 95 N.J. 380 (1984). Prior to September 13, 1982, R. 3:21-10(a) permitted such motions to be filed within 20 days of appellate disposition and courts to reduce or change the sentence within 35 days of appellate judgment. That period was, at least in part, premised on the fact that trial courts lost jurisdiction upon the filing of a notice of appeal and since 1969 the appeal had to be filed before the motion for change or reduction of sentence. See R. 2:4-1(a). See also Pressler, Current N.J. Court Rules, comment to R. 3:21-10, at 486. In 1981 the Supreme Court adopted R. 3:21-10(d) providing jurisdiction in the trial court to entertain a timely motion for change or reduction of sentence notwithstanding the pendency of an appeal. See Pressler, op.

cit, supra, at 489. As a result, the following year the Criminal Practice Committee recommended that the post-appellate time limitations were no longer required. See 109 N.J.L.J. 498 (1982). R. 3:21-10(a) was amended to delete the post-appeal time limits, effective September 13, 1982. Accordingly, trial courts may change or reduce a sentence only on motion made within 60 days and decided within 75 or, if an exception embodied in R. 3:21-10(b) applies, at any time.*fn1

On August 16, 1982 defendant entered a plea of guilty to possession with intent to distribute cocaine. On October 7, 1982 he was sentenced to the Hudson County Jail for a period of 364 days. A fine and mandatory penalty for the benefit of the Violent Crimes Compensation Board were also imposed. The sentence was consistent with a negotiated plea; six other charges were dismissed. The presentence report noted:

Defendant states he rarely drinks and denies any drinking problem. He acknowledges smoking marijuana (a couple of times a week) but denies any hard drug use. He denies any dependency [sic].

The court concluded that given the statutory maximum for the offense (12 years), there was no presumption against imprisonment or that it was overcome because the nature of the offense, quantity involved and need for deterrence required incarceration. See e.g., State v. Sobel, 183 N.J. Super. 473 (App.Div.1982); N.J.S.A. 2C:1-5(b), 43-1(b). Defendant's appeal to the Appellate Division, challenging the denial of his motion to suppress and the sentence, was unsuccessful. The judgment was affirmed on December 28, 1983, and certification was thereafter denied. He was directed to surrender and commence service of his sentence on April 18, 1984.

At sentencing counsel stated that defendant supplied cocaine to others in the context of his own use. There was no other

reference to defendant's use of drugs or dependence upon them.

Defendant filed this motion on April 17, 1984. It was accompanied by voluminous letters and a booklet entitled "A Client Specific Planning Proposal for Daniel T. Dachielle" prepared in January, 1984 by the National Center on Institutions and Alternatives (NCIA). It contains a discussion of the following subjects:

1. "Offense Behavior" of defendant.

2. His "employment history".

3. The concerns of and regarding his family.

4. The impact of incarceration on ...


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