On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. 02-147.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Parrillo and Grall.
The issue presented by this appeal is whether the 2004 amendment to N.J.S.A. 39:4-50(a)(1) that reduced the period of license suspension for some first-time driving while under the influence of alcohol offenses from a minimum of six months to three months applies retroactively to a case where the defendant violated N.J.S.A. 39:4-50 and was convicted in municipal court before the amendment's effective date. We conclude that N.J.S.A. 1:1-15, which establishes a general prohibition against retroactive application of penal laws, precludes such retroactive application of the 2004 amendment to N.J.S.A. 39:4-50(a)(1).
On January 11, 2003, defendant was charged in the Riverdale Municipal Court with driving his car while under the influence of alcohol, in violation of N.J.S.A. 39:4-50.*fn1 After a trial on May 21, 2003, the municipal court found defendant guilty of the charge. On that same day, the court sentenced defendant to a six-month suspension of his driver's license, twelve hours at an Intoxicated Driver Resource Center, a $402 fine, a $200 DWI surcharge, a $75 Safe Neighborhood Fund assessment and a $50 VCCB assessment.
Defendant appealed his conviction to the Law Division. Based on a de novo review of the municipal court record, on March 19, 2004, the Law Division found defendant guilty of violating N.J.S.A. 39:4-50 and reimposed the same sentence imposed by the municipal court. The Law Divison found defendant guilty based solely on a police officer's observations of defendant's operation of his car and performance of sobriety tests; the Law Division did not find defendant guilty of a per se violation of N.J.S.A. 39:4-50 based on the results of blood alcohol tests because the arresting officers failed to comply with the procedural requirements of N.J.S.A. 39:4-50.2(b),(c) and (d).*fn2
After his conviction and sentencing, defendant moved to amend his sentence on the ground that the 2004 amendment to N.J.S.A. 39:4-50(a)(1), which reduced the period of license suspension for some first-time offenders from six to twelve months to three months, L. 2003, c. 314, § 2,*fn3 should be applied retroactively to his case. The court granted defendant's motion and entered an order on July 29, 2004, which reduced the period of his license suspension from 180 to 90 days.
The State appeals from the order reducing the length of defendant's license suspension. The State's primary argument is that N.J.S.A. 1:1-15 precludes the retroactive application of the 2004 amendment to N.J.S.A. 39:4-50(a)(1) to defendant's sentence. Defendant argues in his answering brief that the State is barred from appealing the July 29, 2004 order reducing his suspension to three months because he has already completed that suspension. We consider defendant's argument first.
Defendant initially raised the issue of the retroactive application of the 2004 amendment to N.J.S.A. 39:4-50(a)(1) to the period of his license suspension by a motion for amendment of sentence filed on March 29, 2004, ten days after sentencing. For reasons not disclosed by the record, the trial court did not decide the motion until July 21, 2004, by which time defendant's license already had been suspended for more than three months. As a result, defendant's driver's license was restored shortly after the Law Division decision on his motion. On August 20, 2004, the State appealed from the July 29, 2004 order memorializing the trial court's decision, which was within the forty-five-day period allowed by Rule 2:4-1 for an appeal from a final judgment or post-judgment order.
Defendant argues that because he had completed the three-month period of suspension provided by the July 29, 2004, order before the State appealed, it would violate his expectation of finality and principles of fundamental fairness to allow the State to seek reinstatement of the original six-month suspension.
It is firmly established that a court may correct an illegal sentence at any time. State v. Baker, 270 N.J. Super. 55, 74-76 (App. Div.), aff'd o.b., 138 N.J. 89 (1994). "A corollary of this principle is that the State may appeal an illegal sentence without express authorization in the criminal code or rules of court." State v. Parolin, 339 N.J. Super. 10, 13-14 (App. Div. 2001), rev'd on other grounds, 171 N.J. 223 ...