On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Skillman, Kestin and Wefing. The opinion of the court was delivered by Skillman, J.A.D.
[270 NJSuper Page 652] The primary issue presented by this appeal is whether a defendant whose probationary sentence was stayed pending the State's appeal, but who commenced serving that sentence when the
probation department mistakenly directed him to report, acquired a legitimate expectation in the finality of the probationary sentence which precluded the trial court from sentencing him to a custodial term after the State prevailed on its appeal.
Defendant pled guilty pursuant to a plea agreement to second degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1). In describing the plea agreement, the prosecutor noted that defendant was exposed to a custodial sentence ranging from five to ten years, with a presumptive term of seven years. However, the trial court sentenced defendant to a noncustodial three year probationary term. Immediately after the court imposed sentence, the prosecutor indicated that the State might take an appeal and asked the court to stay the sentence so that an objection "can not be interposed . . . that the defendant has already commenced serving his particular sentence." The court granted a ten day stay of the sentence "[t]o give the State an opportunity to take an appeal from this second degree crime, if they wish to do so." The State filed a notice of appeal within this ten day period and the court entered an order staying defendant's sentence pending the outcome of the appeal.
We concluded in an unreported opinion that the record did not "support a finding that the custodial sentence mandated by defendant's act would work a serious inJustice which overrides the need to deter such conduct." State v. Christensen, No. A-4049-91T3 (Apr. 5, 1993). Accordingly, we reversed the judgment of conviction and remanded for imposition of an appropriate custodial sentence.
Upon remand, defense counsel moved to bar resentencing on double jeopardy grounds. Defense counsel informed the court that even though defendant's sentence had been stayed pending appeal, the probation department had directed defendant to report and begin serving his probationary term. Defense counsel also represented that he failed to inform defendant that his sentence had been stayed pending appeal and that defendant failed to communicate with him when the probation department directed
him to report. Instead, defendant complied with the probation department's directive and commenced serving his probationary sentence, which included reporting to probation, paying fines and attending counseling sessions. Defendant continued on probation for eleven months until our decision on the State's appeal.
The trial court accepted defense counsel's representations that he had not informed defendant of the stay of his sentence pending appeal and that defendant had complied with the probation department's directive to report for probation without communicating with his attorney. However, the court concluded that these circumstances did not bar defendant's resentencing to a custodial term:
It is argued now that the Probation Department apparently unaware of the existence of the Order, called in the Defendant to have him embark upon his probation.
That somehow that mistake or that error . . . made by the Probation Department . . . should nullify the Court order [and] that the double jeopardy principle should apply.
The argument simply in my opinion is not a valid argument at all. [Defendant] was aware of the stay and if he was not aware of the stay, he ...