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State v. Joseph

Decided: February 5, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LIONEL JOSEPH, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Gloucester County.

Pressler, Long and Landau. The opinion of the court was delivered by Long, J.A.D.

Long

[238 NJSuper Page 220] In 1981, defendant Lionel Joseph entered a retraxit plea of guilty to charges of possession of a controlled dangerous substance contrary to N.J.S.A. 24:21-20a(1); distribution of a controlled dangerous substance contrary to N.J.S.A. 24:21-19a(1) and conspiracy to distribute a controlled dangerous substance

contrary to N.J.S.A. 24:21-24. In exchange for the plea, the State agreed to recommend a sentence of three years of probation, conditioned on defendant serving one day in the Gloucester County jail and the imposition of a $5000 fine. The plea agreement also recommended that defendant's probationary term would terminate once the fine was satisfied in full. The trial judge accepted defendant's plea. The judgment of conviction articulated the sentence as follows: "three years probation on count 2 with special condition of probation that defendant serve one day in the Gloucester County jail; a fine of $5000 was imposed payable in equal monthly installments over the term of probation." Although the judgment did not indicate that the fine was a specific condition of probation, it stated that failure to pay the installments on the fine "could" constitute a violation of probation.

In 1987, after defendant's discharge from probation, he still owed $4,565 of the original $5000 fine. The Gloucester County Probation Department instituted a summary collection action against him pursuant to N.J.S.A. 2C:46-2 alleging that he had failed to make a payment since 1985. The trial judge issued a bench warrant for defendant's arrest. Defendant was unable to make bail pending the collection hearing and served 57 days in custody before he was released. After a hearing, the trial judge ordered defendant to make an immediate payment of $500 toward the remainder of his fine and set a $100 per month installment schedule to defray the rest of what was owed. He refused to give defendant credit for the time he spent in jail while the summary collection action was pending.

Defendant appeals, claiming that the trial judge was without power to require the payment of the fine because his three-year conditional probationary period had expired. Alternatively, defendant urges that even if he is required to pay the fine, he is entitled to credit of $20 for each day he spent in jail awaiting the collection proceeding. We disagree with defendant's contention that the power to collect the fine expired with

his probation. We have concluded, however, that he is correct as to his entitlement to monetary credit for the time he spent in jail. We thus affirm in part and reverse in part.

Defendant's sentence was imposed in accordance with the provisions of N.J.S.A. 2C:43-2b(1), (2) and (4). When a defendant fails to complete the payment of a fine, several options are open under the code. Defendant may move for revocation of some or all of the unpaid portion of the fine, alleging changed circumstances which would render it unjust to require continued payment. N.J.S.A. 2C:46-3. The State also has open to it several courses of action. As it did here, it may institute a summary collection action under N.J.S.A. 2C:46-2a, which provides in relevant part:

When a defendant sentenced to pay a . . . fine . . . defaults in the payment thereof or of any installment, the court, upon motion of the person authorized by law to collect the payment . . ., may recall him, or issue a summons or a warrant of arrest for his appearance. After a hearing, the court may reduce or suspend the fine or modify the payment or installment plan, for the fine . . . or, if none of these alternatives is warranted, may impose a term of imprisonment to achieve the objective of the fine. . . .

Alternatively, the State may take any measures "as are authorized for the collection of an unpaid civil judgment entered against the defendant in an action on a debt." N.J.S.A. 2C:46-2b. If the probation was conditioned on the payment of the fine, several other options are also available to the State. It may institute a violation of probation proceeding pursuant to N.J.S.A. 2C:45-3 or move to extend defendant's probation for up to five years for the payment of the fine upon which the probation was conditioned. N.J.S.A. 2C:45-2c; State v. DeChristino, 235 N.J. Super. 291, 562 A.2d 236 (App.Div.1989).

Defendant claims that these options were available to the State only during the term of his probation. This is correct only as to the violation of probation remedy under N.J.S.A. 2C:45-3. That statute specifically provides that the remedy must be exercised prior to the expiration of the probationary period. On the contrary, the extension ...


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