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State v. Rosado

Decided: April 20, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE ROSADO, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Camden County.

Pressler, Skillman and D'Annunzio. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

PRESSLER, P.J.A.D.

The issue before us is the extent of credit to which a defendant is entitled when he is resentenced to a prison term following violation of probation. More particularly, if the defendant had been sentenced to a jail term as a condition of probation and had been paroled after confinement for a portion of the jail term, is he thereafter entitled to credit for the entire jail term imposed, including the time spent on parole, or only to the portion thereof spent in confinement? We hold that defendant is entitled to credit for the entire jail term imposed, including parole time.

Defendant Jose Rosado was charged under N.J.S.A. 2C:35-7 with possession within 1,000 feet of a school of about a quarter of an ounce of cocaine with intent to distribute. Following plea

negotiations, an agreement was reached whereby the prosecutor, pursuant to N.J.S.A. 2C:35-12, agreed to waive the mandatory minimum term and to recommend that defendant be sentenced to five years of probation subject to the condition of a 364-day jail term and such other conditions as the Judge might impose. Defendant accordingly pleaded guilty and that was the sentence, including prescribed fines and penalties, which was actually imposed on April 21, 1989. Following the imposition of that sentence, the prosecutor made this statement:

Your Honor, it's my understanding that the mandatory sentence was waived in this matter for plea purposes only.

The Judge responded as follows:

Yes. The State has waived the mandatory sentence provision on the drug act. However, some county jail time is appropriate, given the nature of the offense and, therefore, I've chosen to sentence in accordance with the plea agreement, which is fair under all the facts and circumstances of the case.

Defendant was never asked about his understanding of the import of the prosecutor's statement and there is nothing of similar import in any of the prior proceedings or documents.

An accusation was thereafter filed by the probation department charging defendant with violation of probation as of March 31, 1990. Following a hearing in July 1990, defendant was found guilty of failure to report, failure to take substantial steps to learn English, failure to obtain employment, failure to remain drug free and failure to undergo testing. The Judge was of the view that the mandatory minimum sentence had now to be imposed and accordingly sentenced defendant to a five-year term subject to a three-year term of parole ineligibility. As of the date of resentencing, defendant was accorded credit for 117 days spent in jail from February 9, 1989 to June 5, 1989. He was not given credit for the time thereafter spent on parole in completion of the 364-day term.

Before dealing with the question of credit, there are several other issues we must address. First, defendant argues that he is entitled to the benefit of the prosecutor's waiver of the ...


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