On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. 07-11-00765-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Fisher and Baxter.
The State moves to vacate the dismissal of its appeal and to reinstate the appeal which was dismissed on May 8, 2009 for failure to file a brief. The State has filed its brief "in support of" the appeal with the motion. Defendant has filed an opposition brief which he asks us to treat as his merits brief if the appeal is reinstated. As we denied defendant's motion to dismiss the appeal on December 1, 2008, but now have the merits briefs from both parties, we have elected to give the appeal plenary consideration and dismiss the appeal following complete review of the matter. See Parker v. City of Trenton, 382 N.J. Super. 454 (App. Div. 2006).
On August 22, 2008 defendant was "sentenced as a 3rd degree" offender for a second-degree crime. More than ten days later, on September 8, 2008, the State moved for reconsideration, which was denied on October 3, 2008. By motion dated October 2, 2008, the State first moved before the sentencing judge "for a stay pending appeal." That motion was also denied on October 3, 2008. The State thereafter filed this appeal on October 9, 2008, almost a month and a half after the sentence was imposed.
Even assuming that a sentence imposed without respect to the findings required by N.J.S.A. 2C:44-1f(2), see State v. Megargel, 143 N.J. 484 (1996), can be deemed an "illegal" sentence, see, e.g., State v. Clark, 65 N.J. 426, 437 (1974); State v. Flores, 228 N.J. Super. 586, 592 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), the offense was downgraded for purposes of sentencing, pursuant to N.J.S.A. 2C:44-1f(2), and, in any event, the sentence imposed was within the range for a downgraded offense, and the remedy for such a downgrade and sentence is embodied in that statute which requires the appeal to be filed within ten days of the sentence. See R. 2:9-3(d); N.J.S.A. 2C:44-1f(2). See also State v. Ryan, 86 N.J. 1, cert. denied, 454 U.S. 880, 102 S.Ct. 363, 70 L.Ed. 2d 190 (1981); State v. Johnson, 376 N.J. Super. 163, 166-67, 170-73 (App. Div.) (finding State's appeal timely because of the "next business day rule," but noting that "[t]he State's right to appeal defendant's 'downgraded' sentence is dependent upon the State's compliance with N.J.S.A. 2C:44-1f(2)" and "the statutory ten-day requirement is jurisdictional," at 170-71), certif. denied, 183 N.J. 592 (2005); State v. Lebra, 357 N.J. Super. 500, 506 (App. Div. 2003) (appeal pursuant to N.J.S.A. 2C:44-1f(2)).
We dismiss the appeal as untimely.
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