On appeal from the Superior Court of New Jersey, Law Division, Warren County.
Gaulkin, Shebell and Havey. The opinion of the court was delivered by Shebell, J.A.D.
The issue presented in this appeal is what action constitutes "[t]he commencement of a probation revocation proceeding" so as to toll a probationary period pursuant to N.J.S.A. 2C:45-3c. We hold that the formal filing with the court of a petition or complaint by a probation officer constitutes commencement of a probation revocation proceeding within the contemplation of the statute. We therefore reverse and remand.
Defendant, Anna Grabinski, pleaded guilty on June 25, 1986 to one count of distribution of marijuana and one count of distribution of hashish (N.J.S.A. 24:21-19a(1) (repealed 1987)), as charged in a Warren County indictment handed up on May 1, 1986. On August 15, 1986, defendant was sentenced to concurrent three-year periods of probation, with the conditions that she serve 100 days in the county jail, receive drug evaluation and treatment including urine monitoring, and remain drug-free and avoid association with known drug users or dealers.
On August 8, 1989, a Warren County probation officer filed a complaint with the Warren County clerk of the Superior Court, Law Division, "report[ing] that in his opinion, one ANNA MARIE GRABINSKI who was committed on 08/15/86 to the care of the Chief Probation Officer on a charge of DISTRIBUTION OF CDS has in the judgment of the said Chief Probation Officer violated the conditions of her probation." The officer set forth six specific factual allegations concerning defendant's violations of probation. These included being convicted of a subsequent offense; leaving the jurisdiction without permission; failing to give notice of change of residence; failing to complete substance abuse evaluation and treatment; admitting to continued use of illegal drugs, and associating with a known substance abuser.
The probation officer next obtained a September 15, 1989 court appearance date from the criminal case manager and prepared a notice, dated August 23, 1989, summoning the defendant to appear before the Superior Court, Law Division-Criminal Part, to enter a plea to the complaint, a copy of which was attached to the summons. The summons was mailed on August 28, 1989 to defendant's last known address.
Defendant appeared as scheduled and pleaded not guilty to the violation of probation charges. No hearing was held on the alleged violations of probation, as the Law Division judge on April 5, 1990 granted defendant's motion to dismiss the complaint on the basis that the three-year term of probation had expired on August 14, 1989, prior to the issuance of the summons on August 23, 1989. The Law Division judge held that "[t]he notice or the summons must be going out prior to the date of the termination of the probation." In making this ruling, he relied upon our holdings in State v. DeChristino, 235 N.J. Super. 291, 562 A.2d 236 (App.Div.1989), and State v. Hyman, 236 N.J. Super. 298, 565 A.2d 1086 (App.Div.1989).
In State v. Gibson, 156 N.J. Super. 516, 531, 384 A.2d 178 (App.Div.), certif. denied, 78 N.J. 411, 396 A.2d 598 (1978), we concluded "that in order for the court to have jurisdiction to revoke probation and punish a probationer for violation of a probationary condition under N.J.S.A. 2A:168-4 [(repealed 1979)], the warrant must issue during the probationary period." However, under that predecessor statute, the probation officer could issue a warrant or arrest the probationer for violating the condition of his probation and then "forthwith report such an arrest or detention to the court and submit to the court a report showing the manner in which the probationer has violated his probation." N.J.S.A. 2A:168-4 (repealed 1979). The authority conferred upon the court under the former statute was to issue a warrant and cause the probationer to be arrested "[a]t any time during the probation period." Id.
It was in this context that the Gibson court concluded that "[w]here violation proceedings are not initiated within the probationary term, the courts are without jurisdiction to revoke probation." 156 N.J. Super. at 531, 384 A.2d 178. We do not withdraw from this holding in our decision today; however, we are satisfied that, under the present Criminal Code, probation revocation proceedings are commenced by the filing of a probation violation complaint with the court. N.J.S.A. 2C:45-3c.
[T]he only statutory provision now in effect which provides for the tolling of a period of probation is ...