On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-02-0118.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Yannotti.
The State appeals from the judgment of conviction entered in this matter on June 26, 2009, and challenges the provision of the judgment awarding defendant 471 days of jail credit in the period from January 11, 2008, to April 28, 2009. For the reasons that follow, we affirm.
The appeal arises from the following facts. Defendant was charged under Indictment No. 07-08-0720 with first degree robbery, contrary to N.J.S.A. 2C:15-1, and various other offenses. Defendant was unable to post bail and he was incarcerated in the Union County jail pending a trial on those charges. On December 14, 2007, defendant escaped from the jail. He remained at large until law enforcement officers apprehended him in Mexico City on January 9, 2008. Defendant was then returned to New Jersey on January 11, 2008. He was then incarcerated in a State correctional facility.
Defendant was thereafter charged under Indictment No. 08-02-0118 with third degree escape, contrary to N.J.S.A. 2C:29-5(a). Defendant was tried before a jury on the charges in Indictment No. 07-08-0720 in April 2009, with the exception of the two counts charging hindering his own prosecution, which were severed. On April 29, 2009, the jury found defendant not guilty on all of the charges that were tried. The court then granted the State's motion for dismissal of the severed counts. The court also dismissed another charge.
Defendant remained in jail, however. On May 5, 2009, defendant pled guilty to escape as charged in Indictment No. 08- 02-0118. He was sentenced on June 26, 2009, to five years of incarceration. The court awarded defendant 531 jail credits, which included 471 jail credits for the period from January 11, 2008 until April 28, 2009.
On July 29, 2009, the State filed a notice of appeal from the judgment of conviction entered on June 26, 2009. The matter was placed on our Excessive Sentencing Appeal calendar; however, we entered an order dated March 25, 2010, transferring the matter to the plenary calendar.
Defendant argues that the State does not have the right to appeal the award of jail credits because the award of credits at issue here was an exercise of the court's discretion. We disagree.
It is well established that the State may appeal from an illegal sentence. State v. Tavares, 286 N.J. Super. 610, 617 (App. Div.), certif. denied, 144 N.J. 376 (1996). See also State v. Kirk, 243 N.J. Super. 636, 643 (App. Div. 1990) (holding that, "so long as the issue of defendant's sentence is properly before the court, the court may correct an illegal sentence, even by increasing the term" thereof). We are satisfied that the State may appeal where, as in this case, it asserts that the trial court awarded a defendant jail credits to which he is not lawfully entitled.
We turn to the merits of the State's appeal. The State contends that the trial court erred by awarding defendant jail credits for the period from January 11, 2008, through April 28, 2009. We disagree.
Rule 3:21-8 provides that a "defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." Under the rule, jail credits are only awarded "for a period of incarceration attributable to the crime for which the sentence is imposed." State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div.), certif. denied, 192 N.J. 68 (2007) (citing In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div.), certif. denied, 88 N.J. 494 (1981)).
We are not convinced that the trial court abused its discretion by awarding defendant jail credits for the period from January 11, 2008, through April 28, 2009. As stated previously, defendant was incarcerated in that period as a result of the charges in Indictment No. 07-08-0720. However, in ...