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State v. Rosado

Decided: February 25, 1993.

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



On certification to the Superior Court, Appellate Division, whose opinion is reported at 256 N.J. Super. 126 (1992).

Clifford, Wilentz, Pollock, O'Hern, Garibaldi, Stein, Handler

Clifford

The opinion of the court was delivered by

CLIFFORD, J.

We granted certification, 130 N.J. 20 (1992), to review the Appellate Division's determination that when sentencing a defendant to prison following a revocation of probation, the court must give credit not only for time served in a county jail as a condition of that probationary term but also for time on parole after release from the county institution. See State v. Rosado, 256 N.J. Super. 126, 133, 606 A.2d 835 (1992). We modify the judgment below only in respect of credit, and, as modified, affirm.

I

Defendant, Jose Rosado, pleaded guilty to a February 9, 1989, distribution of cocaine within 1,000 feet of a school, in violation of N.J.S.A. 2C:35-7. In keeping with a plea agreement that included the State's waiver of the mandatory-minimum term, the court sentenced defendant, on April 21, 1989, to five years probation conditioned on service of 364 days in the county jail. On June 5, 1989, Rosado was granted parole and released from jail. On December 9, 1989, his parole supervision having expired, defendant's parole was terminated. At that point the county probation authorities assumed supervision of defendant's probation.

In June 1990 Rosado was returned to court because he had violated probation. After a hearing the court found defendant guilty of a number of willful violations of probation conditions. It therefore vacated the April 21, 1989, sentence and imposed a five-year term of imprisonment with a three-year parole disqualifier. On that sentence Rosado received 117 days credit, covering the time he had spent in county jail from his arrest on February 9, 1989, to June 5, 1989, the date on which he had been placed on parole.

On defendant's appeal the Appellate Division, after correcting defendant's sentence to a straight four years, 256 N.J. Super. at 130-31 -- a decision not before us -- held that the sentencing court should have counted the time spent on parole from the county-jail term, as well as the jail time itself, in the calculation of credit to which defendant was entitled on resentencing. Id. at 132. The court ruled that defendant should have received credit for the full 364-day county-jail term. Id. at 132-33.

In reaching its Conclusion the court below focused on N.J.S.A. 2C:45-1d. That section reads:

When the court sentences a person who has been convicted of a crime to be placed on probation, it may require him to serve a term of imprisonment not exceeding 364 days as an additional condition of its order. When the court sentences a person convicted of a disorderly persons offense to be placed on probation, it may require him to serve a term of imprisonment not exceeding 90 days as an additional condition of its order. In imposing a term of imprisonment pursuant to this subsection, the sentencing court shall specifically place on the record the reasons which justify the sentence imposed. The term of imprisonment imposed hereunder shall be treated as part of the sentence, and in the event of a sentence of imprisonment upon the revocation of probation, the term of imprisonment served hereunder shall be credited toward service of such subsequent sentence. A term of imprisonment imposed under this section shall be governed by the "Parole Act of 1979," P.L. 1979, c. 441 (C. 30:4-123.45 et seq.).

Whenever a person is serving a term of parole as a result of a sentence of incarceration imposed as a condition of probation, supervision over that person shall be maintained pursuant to the provisions of the low governing parole. Upon termination of the period of parole supervision provided by law, the county probation department shall assume responsibility for supervision of the person under sentence of probation. Nothing contained in this section shall prevent the sentencing court from at any time proceeding under the provisions of this chapter against any person for a violation of probation.

Because the above section provides that a term of imprisonment imposed as a condition of probation "shall be governed by the Parole Act of 1979," the Appellate Division turned to N.J.S.A. 30:4-123.65, which declares that

the duration of time served prior to parole, plus the duration of any time served on parole, less any time after warrant for retaking of a parolee was issued pursuant to section 18 but before the parolee is arrested, plus the duration of any time served after revocation of ...


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