On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-02-00568-I.
Before Judges Skillman, Wallace, Jr. and Wells.
The opinion of the court was delivered by: Wells, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The State appeals, pursuant to N.J.S.A. 2C:44-1f(2), from the imposition of a probationary sentence on defendant Eric Gould, a second degree offender. However, because the State did not appeal within the ten-day period allowed by the statute while at the same time Gould commenced serving probation, we are constrained to dismiss the appeal. State v. Sanders, 107 N.J. 609, 616 (1987); State v. Watson, 183 N.J. Super. 481 (App. Div. 1982). Failing to do so would expose Gould to double jeopardy, which it is the policy underlying the statute to avoid. Sanders, supra, 107 N.J. at 618-21.
The facts are not in dispute. Gould was indicted for first degree robbery, second degree conspiracy to commit robbery and second degree aggravated assault. Pursuant to a plea agreement whereby the first degree robbery was amended to the second degree offense, Gould pled to the amended charge and the other charges. The State recommended a custodial sentence not to exceed five years. During the plea proceedings on March 19, 2001, Gould admitted to repeatedly hitting a woman who worked at the convenience store which he and another defendant planned to rob, causing bleeding, breaking her bones and rendering her unconscious. The woman was 65 years old.
On July 20, 2001, Gould was sentenced. The court had received two psychological reports indicating that Gould was mildly retarded. The court merged the conspiracy charge with the underly-ing robbery. Relying on State v. Jarbath, 114 N.J. 394 (1989), and finding that exceptional circumstances existed, the judge sentenced Gould to seven years probation on both the robbery and the assault convictions to be served concurrently, subject to conditions. Those conditions were:
Defendant is to undergo psychiatric evaluation in the next 45 days which is to include an evaluation for any appropriate drug therapy related to any psychological disorder or condition. Mr. Gould is to continue to be under the care of a psychologist and/or psychiatrist as arranged by medical evaluation and to take any prescribed medications; Mr. Gould is to participate in an association of retarded citizens program; Mr. Gould is to reside with a family member; Mr. Gould is to continue to be employed, to seek employment if he becomes unemployed, to participate in job training as necessary; Mr. Gould is to complete his GED; Mr. Gould is not to possess any weapon including any handgun; Mr. Gould is not to have any contact with the victim; Mr. Gould is to pay any arrearages owed to the probation department; Mr. Gould is to submit to electronic monitoring for a period of twelve months; and Mr. Gould is to report, along with his father, to this court in six months, which date is February 22, 2002; Mr. Gould is to regularly report to the probation department.
The prosecutor immediately indicated the State's intent to appeal pursuant to N.J.S. A. 2C:44-1f(2) and the following colloquy with the judge ensued:
MR. FOY: The State does have one application at this time, pursuant to 2C:44- 1f(2). The State now moves for a stay of sentence to afford the State the opportunity to perfect an appeal.
MR. HARTWYK: Judge, I see no basis for a stay. If the State wants to pursue an appeal, they can do so --
MR. FOY: Your Honor, specifically --
MR. HARTWYK: -- with due ...