On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Michels, Brody and Gruccio.
In 1986 we affirmed defendant's conviction for the shot-gun murder of a gas station attendant and related offenses for which, on November 9, 1984, defendant had been sentenced to an aggregate prison term of 30 years without parole. After reciting the substantial evidence of defendant's guilt, we said, "We conclude that this evidence suffices to support a finding that the homicide was both knowing and purposeful and committed either in the course of committing or attempting to commit a robbery." We also rejected defendant's arguments that the victim's bloodstained shirt was erroneously admitted into evidence, that in his charge the trial judge misstated the testimony of a witness, and that the judge erroneously failed to have the jury consider the lesser crime of reckless manslaughter.
We now have before us for review Judge Sullivan's order denying defendant's petition, dated November 1, 1989, for post-conviction relief. Although R. 3:22-1 requires that a person convicted of a crime "file [a petition for post-conviction relief] with the county clerk of the county in which the conviction
took place," there is no evidence in the record submitted to us that defendant ever did so. However, his papers were stamped "Received Nov 15 1989" by Judge Sullivan. In this appeal the State argues for the first time that defendant's petition is barred by the five-year limitations rule. R. 3:22-12. The rule provides:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
The period between the date of defendant's sentence, November 9, 1984, and the date on which Judge Sullivan marked defendant's papers "received," November 15, 1989, exceeds the limitations period by six days.
Defendant does not claim that he is entitled to relief from the bar by "excusable neglect." Rather he contends in his reply brief that Judge Sullivan delayed stamping his papers "received" until after the limitations period had expired. Aside from the fact that defendant's statement in his brief is not evidence, the rule is intended to avoid such disputes by requiring the convicted person to file a petition for post-conviction relief with the county clerk where its date of receipt is routinely recorded. We therefore conclude, on the record before us, that defendant's petition is out of time and should not have been considered. Unfortunately, the State failed to raise the matter below where a fuller record could have been developed. We will therefore proceed to consider defendant's petition solely on the chance that evidence may later be discovered that the petition was timely filed.
Defendant raises the following points in his brief:
I. THE FAILURE TO INDICT DEFENDANT FOR THE CRIME OF ROBBERY OR ATTEMPTED ROBBERY AND TO REQUIRE THE JURY TO CONVICT DEFENDANT OF ROBBERY OR ATTEMPTED ROBBERY AS A PREREQUISITE TO CONSIDERATION OF FELONY MURDER VIOLATED HIS RIGHTS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS.
II. THE JURY INSTRUCTIONS WHICH DEFINED ATTEMPTED ROBBERY CONSISTENT WITH N.J.S.A. 2C:5-1 ...