On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Dreier, Havey and Brochin. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).
On October 12, 1982, defendant Philip DeChristino pleaded guilty to third degree theft and to third degree burglary. He was sentenced to pay $400 in fines, $100 in Violent Crimes Compensation Board penalties and $28 in courts costs, and to serve five years' probation conditioned on making restitution of $5,581.56, payable $75 per month. His sentence date was November 12, 1982, and his period of probation was therefore scheduled to end no later than November 12, 1987. See N.J.S.A. 2C:45-2a.
On April 4, 1988, nearly five months after the date on which defendant's probation was scheduled to end, he was served with a notice of arraignment for violation of probation. He was charged with violating his probation by (1) absconding from probation on April 25, 1983; (2) failing to pay the restitution, fine, Violent Crimes Compensation Board penalty and court costs which had been ordered by the court at the time he was sentenced; (3) failing to report a change of address; and (4) conviction in Montana on February 29, 1984, of obtaining a controlled dangerous substance by fraud and in Pennsylvania on January 22, 1988, of possession of a firearm by a felon. Defendant pleaded guilty to violating probation as charged, and he was sentenced to two concurrent four-year terms of imprisonment and to pay $100 to the Violent Crimes Compensation Board.
Defendant appealed his conviction of violation of probation, alleging that the sentence was excessive and that the sentencing court lacked the legal authority to revoke his probation because his probationary term had expired before he was noticed for a violation. The appeal first came before us on our excessive sentence calendar. We ruled at that time that because of the particular facts of this case, further incarceration of the defendant was an abuse of discretion. We ordered that the defendant be released forthwith from incarceration, placed on probation, and directed to comply with the terms and conditions of his 1982 probation, including payment of the fine, penalty and obligation of restitution as originally imposed. We retained jurisdiction to decide the remaining issue posed by defendant, whether or not the trial court had jurisdiction under N.J.S.A. 2C:45-2c to extend or revoke his probation. For the following reasons we now hold that for a reasonable time after the expiration of the original term of probation, the court had the power to extend defendant's probation, but not to revoke it and incarcerate him for violations of probation for which he was not noticed within the original term.*fn1
The defendant relies upon N.J.S.A. 2C:45-2c for the proposition that "upon the termination of the period of . . . [his] probation" by the expiration of the five-year term which was imposed, he was "relieved of any obligations . . . and shall have satisfied his sentence . . ." He also contends that N.J.S.A.
2C:45-3 means that his probation could be revoked, if at all, only "At any time before . . . the termination of the period of . . . probation."
The State argues that the period of the defendant's probation was tolled after he absconded and while he was absent from the State. For that proposition, it cites State v. Williams, 133 N.J. Super. 481 (App. Div.), certif. den. 69 N.J. 80 (1975). In addition, it relies on the clause of N.J.S.A. 2C:45-2c which creates an exception to the termination of a probationer's obligations; i.e., ". . . except that this subsection shall not apply if the defendant has failed to . . ." pay his fine or restitution. Since the defendant admittedly has not paid the fine and the restitution obligation which were imposed, the State contends that the probationary period may be extended for an additional five-year period and, during that extension, that it may revoke defendant's probation for the violations which he committed in the initial period.
Both the State and the defendant appear to agree that a proceeding for the revocation of probation must be commenced, if at all, prior to the expiration of the period of probation. We concur. That was the holding of this court construing a prior statute whose language, insofar as this issue is concerned, was similar to N.J.S.A. 2C:45-3a. See State v. Gibson, 156 N.J. Super. 516, 526-531 (App.Div.1978) (construing N.J.S.A.
2A:168-1 which read, "At any time during the probation period the court may issue a warrant and cause the probationer to be arrested for violating any of the conditions of his probation . . ."). Furthermore, the applicable court rule is even clearer than the statute. It says, "At any time before termination of the period of suspension or ...