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State v. Breyan

Decided: January 17, 1990.

STATE OF NEW JERSEY, PLAINTIFF,
v.
EDWARD BREYAN, DEFENDANT



MUNICIPAL APPEAL No. 127-89.

Costello, J.s.c.

Costello

This case is before the court on appeal from the Bayonne Municipal Court. Defendant appeals from that court's denial of his motions:

(1) to have his previously imposed sentence for DWI vacated; and

(2) to be resentenced as a first, rather than a second offender.

The legal issue presented is whether State v. Laurick, 231 N.J. Super. 464, 555 A.2d 1133 (App.Div.1989) should be applied retroactively in this case.

The procedural history of the case is as follows:

On August 18, 1977, defendant, Edward J. Breyan entered a plea of guilty to driving while intoxicated, a violation of N.J.S.A. 39:4-50 in the Elizabeth Municipal Court. He did not have an attorney and was not advised of his right to be represented by counsel. Breyan was sentenced to pay a $200 fine, $10 in court costs and a two-month revocation of his driver's license.

On April 17, 1986, he appeared with counsel and pled guilty to driving while intoxicated, a violation of N.J.S.A. 39:4-50 in

the Bayonne Municipal Court. He was treated as a second offender for purposes of sentencing and was sentenced to pay a $500 fine, $15 in court costs, a $100 surcharge, spend 48 hours in an intoxicated driver resource center, provide 30 days of community service, and lastly, his driver's license was suspended for two years.

On December 3, 1986, he appeared with counsel and pled guilty to driving while under the influence, a violation of N.J.S.A. 39:4-50 before the New Providence Municipal Court. He was sentenced as a third offender.

On September 6, 1989, he moved before the Municipal Court of New Providence to have the sentence vacated and to be resentenced as a second offender, contending that the Elizabeth Municipal Court plea was uncounseled and should therefore not be used for sentencing enhancement. The New Providence Municipal Court judge agreed and resentenced him as a second offender to pay a $1000 fine, $15 in court costs, a $100 surcharge, 90 days in jail (suspended), and a two-year ...


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