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State in Interest of R.P.

Decided: December 17, 1984.

STATE OF NEW JERSEY IN THE INTEREST OF R.P., A JUVENILE. STATE OF NEW JERSEY IN THE INTEREST OF F.F., A JUVENILE


On appeal from the Superior Court, Chancery Division-Family Part, Hudson County.

McElroy, Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

The State has filed appeals from the probationary sentences imposed on April 27, 1984 in the cases of the juveniles, R.P. and F.F.

R.P. pled guilty to charges which had he been an adult would constitute two counts of theft (N.J.S.A. 2C:20-3a), two counts of robbery (N.J.S.A. 2C:15-1), burglary (N.J.S.A. 2C:18-2), aggravated assault (N.J.S.A. 2C:12-1b(1)), terroristic threats (N.J.S.A. 2C:12-3) and a violation of probation (N.J.S.A. 2C:45-3).

F.F. pled guilty to what would constitute adult offenses of second degree robbery (N.J.S.A. 2C:15-1), theft (N.J.S.A. 2C:20-2b(3)) and a violation of probation (N.J.S.A. 2C:45-3).

We conclude the State lacks statutory authority to appeal these sentences and therefore we are unable to decide whether the sentencing judge erred in failing to follow the sentencing guidelines of N.J.S.A. 2A:4A-44 and impose custodial sentences.

The State has no right to appeal from a sentence in a criminal case except in accordance with express statutory authorization. United States v. Sanges, 144 U.S. 310, 312, 12 S. Ct. 609, 36 L. Ed. 445, 446 (1892); State v. Roth, 95 N.J. 334, 343

(1984); State v. Watson, 183 N.J. Super. 481, 484 (App.Div.1982); State v. Farr, 183 N.J. Super. 463, 469-70 (App.Div.1982); see generally Note, "The Right of State Appeal in Criminal Cases," 9 Rutgers L.Rev. 545 (1955). In New Jersey that authority is provided by N.J.S.A. 2C:44-1f(2) which states:

We find no legislative authorization in New Jersey for appeals by the State of juvenile sentences. N.J.S.A. 2C:44-1f(2) applies by its own terms to sentences imposed "upon conviction for a crime." Under both the old and new juvenile laws a juvenile may be adjudged "delinquent" but not "criminal." See N.J.S.A. 2A:4-14 (repealed 1973) and N.J.S.A. 2A:4A-23.

The State urges that authority for the instant appeals is derived from R. 2:9-3(d). However, this rule provides for staying a sentence when the State appeals under N.J.S.A. 2C:44-1f(2) and can only apply where the right to appeal is given to the State. The former Juvenile and Domestic Relations Court Law, provided:

An appeal may be taken from any final order or judgment of the juvenile and domestic relations court to the appellate division of the superior court. N.J.S.A. 2A:4-40 (repealed 1982).

That provision was never interpreted to give the State the right to appeal a juvenile sentence. When the New Jersey Code of Juvenile Justice was enacted, no corresponding section appeared in the law. It is noted in the dispositional table that precedes the Juvenile Code that the subject matter once treated in N.J.S.A. 2A:4-40 is now covered by R. 2:2-3. R. 2:2-3 contains no reference to the State's right to appeal a juvenile's sentence. We find no merit to the argument that the rule by providing for appeals "As of Right" "from final judgments of ...


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