The issue in this case is whether it is proper, following a retrial and reconviction, for a second trial court to increase a defendant's previous illegal sentence, when the defendant did not appeal his original sentence. This court holds that it is.
Initially, defendant was tried and convicted on two counts of theft in violation of N.J.S.A. 2C:20-6 and two counts of bad checks in violation of N.J.S.A. 2C:21-7. Both crimes are third-degree offenses. He was sentenced to
two concurrent terms of four years on the theft charges, and two concurrent terms of nine months on the bad checks charges; the sentences on the bad checks charges were to run consecutively with the sentences on the theft charges. The court's mistaken belief that the bad checks charges were fourth-degree offenses instead of third-degree of fenses, accounted for the nine-month sentences.
On appeal, defendant was granted a retrial because the trial judge erroneously refused to recuse himself. Upon retrial, defendant was again convicted. This court imposed a sentence of two concurrent terms of four years on the theft charges, and two concurrent terms of four years on the bad checks charges, to run consecutively with each other.
Defendant claims that this sentence is improper because it is more severe than the one originally imposed upon his first conviction. He seeks an amendment to the sentence so as to reinstate the original sentence in effect before the retrial. In support of his position, defendant argues that the increased sentence is in violation of the Double Jeopardy Clause, deprives him of due process, and that this court lacks jurisdiction to change the sentence. This court disagrees.
The Fifth Amendment guarantee against Double Jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 707 (1969). New Jersey case law has recognized this tenet and "has consistently followed the principles of the federal Double Jeopardy Clause because it is broader than our State's." State v. Towey, 244 N.J. Super. 582 ,596 (App. Div. 1990). Towey stands for the proposition that in the area of sentencing, Double Jeopardy Clause violations are analyzed in terms of the defendant's legitimate expectation regarding the finality of his sentence.
In Towey, the Appellate Division struck down a trial court's increase of a defendant's base term from ten years to fifteen years as violative of double jeopardy, after the defendant had appealed the correctness of her parole ineligibility period. In reaching its conclusion, the court reasoned that "clearly, when defendant filed her appeal she had an expectation that the base prison term of ten years would be preserved while her parole ineligibility term would either be found excessive or affirmed." Id. at 598.
Although this expectation exists where a defendant challenges his sentence, the court noted that a defendant does not have such an expectation where "he challenges underlying convictions which, if successful, destroy the sentencing ...