On appeal from Superior Court of New Jersey, Law Division, Burlington County.
McElroy and Dreier. The opinion of the court was delivered by Dreier, J.A.D.
[198 NJSuper Page 154] Defendant appeals from a denial of his motion for post-conviction relief seeking credit for the full time he served in Florida for a crime committed after the offense for which he received a New Jersey sentence.
On July 13, 1979 defendant was indicted for robbery (N.J.S.A. 2A:141-1) and assault with intent to rob (N.J.S.A. 2A:90-2). He had previously been charged in a Delran Township municipal complaint with unlawful use of a motor vehicle and in a Burlington County accusation with escape. On March 2, 1979 defendant entered retraxit pleas of guilty to these latter two charges. The robbery indictment related to an offense committed the day following the plea to the earlier charges.
Defendant then escaped to Florida where on August 22, 1979 he committed another crime. He was convicted in Florida and sentenced on September 6, 1979 to three years in a Florida prison, commencing that date. New Jersey located him and lodged a detainer against him in the Florida prison in April 1980 but did not gain custody of him until September 26, 1980.
On January 12, 1981, after trial in New Jersey, defendant received a three to five-year sentence for the robbery, as well as concurrent 30-day terms on the municipal complaint and accusation. This five-year sentence was to run concurrently, but not coterminus, with the Florida sentence, commencing January 12, 1981.*fn1 The defendant, therefore, had served approximately one year and four months of his Florida sentence at the time the concurrent five-year New Jersey sentence commenced.
The single issue presented on this appeal is whether N.J.S.A. 2C:44-5(b)(2) applies to defendant's situation. The statute in question, effective September 1, 1979 and amended L. 1983, c. 462, § 1, effective January 12, 1984, provides, in pertinent part:
2C:44-5. Multiple sentences; concurrent and consecutive terms
b. Sentences of imprisonment imposed at different times. When a defendant who has previously been sentenced to imprisonment is subsequently sentenced
to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:
(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served;
Defendant asserts that his situation falls squarely within the language of N.J.S.A. 2C:44-5(b)(2) and, thus, calls his sentence "illegal" because he was not given credit for the time he had already served in Florida at the time of his sentencing in New Jersey. Defendant, previously sentenced to imprisonment in Florida, was, indeed, subsequently sentenced to another term for an offense committed prior to the Florida sentence. For that reason, a superficial reading of the statutory provision gives the impression that it applies to defendant's situation, as he suggests. However, important public policy ...