On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-03-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Sapp-Peterson and Alvarez.
On March 5, 1996, defendant, appearing pro se, pled guilty in the Tenafly Municipal Court to improper passing, N.J.S.A. 39:4-85, and was sentenced to pay a $50 fine and $30 court costs. Despite no less than seven notices from the court, defendant failed to pay the fine and costs. On February 22, 2000, the court issued a warrant for defendant's arrest. Defendant appeared to answer the charge that he had failed to pay the fine on June 6, 2007. Once again appearing pro se, defendant moved to retract his guilty plea. The State did not oppose the request. The court granted defendant's motion and scheduled the matter for hearing at a later date. Defendant waived counsel and appeared pro se for the hearing on August 15, 2007. The charging officer and defendant were the only witnesses who testified during the hearing. At its conclusion, the court found defendant guilty and imposed a $150 fine and $33 court costs.
Defendant appealed de novo to the Law Division. The court issued a scheduling order for the submission of briefs and oral argument. Both the State and defendant waived oral argument. The Law Division judge deferred to the credibility findings of the municipal judge and found defendant guilty of the offense. The court also rejected defendant's legal argument that double jeopardy prevented the trial of defendant on the offense once his guilty plea was vacated by the municipal judge. The present appeal followed.
On appeal defendant raises the following points for our consideration:
THE COURT BELOW VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DOUBLE JEOPARDY ACCORDING TO THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION.
THE COURT SHOULD REVERSE DEFENDANT'S SECOND CONVICTION WITH COSTS FOR THE APPEAL TO BE REIMBURSED TO THE DEFENDANT, AND REINSTATE THE DEFENDANT'S ORIGINAL CONVICTION.
After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R 2:11-3(e)(2). We add only that double jeopardy is not implicated where, as in this case, "defendant himself sought the relief of [withdrawal of his guilty plea] and was accordingly returned to his original position." State v. Naji, 205 N.J. Super. 208, 216 (App. Div. 1985) (holding the principle of double jeopardy did not apply where defendant sought the relief of re-sentencing), certif. denied, 103 N.J. 467 (1986).