State v. Ryan

¶1concurring in part and dissenting in part.

¶2The Supreme Court opinion in United States v. DiFrancesco, - U.S. -, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), strongly supports the proposition that resentencing a defendant whose probation has been revoked is not inhibited by the Double Jeopardy Clause which protects a person from being “subject for the same offence to be twice put in jeopardy of life or limb.” DiFrancescois not on “all fours” with the present case, but it dealt with the same legal principles implicated in this case. DiFrancescoinvolved an increased sentence following an appeal by the government challenging the original sentence as too lenient. In this case, the increased sentence followed revocation of probation. However, in both cases, the increased sentences were authorized by statute. Defendants in both cases had begun to serve their original prison terms before the increases were imposed. Consequently, the double jeopardy analysis followed by the Supreme Court is entitled to thoughtful consideration in resolving this federal constitutional question.

¶3Writing for the Court in DiFrancesco, Justice Blackmun stated that the central objective of the double jeopardy principle was the prohibition against successive trials, as evidenced by the *15common law roots of the Clause, namely pleas of autre fois acquit, autre fois convict, and pardon. The pronouncement of sentence, he declared, has never carried the finality that attaches to an acquittal. Id.at-, 101 S.Ct. at 435, 66 L.Ed.2d at 343. Thus in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the defendant, who successfully obtained a new trial after appeal, could be subjected to a greater sentence than that which had been imposed following the first trial.

¶4Justice Blackmun then explained:

The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be. Congress has established many types of criminal sanctions under which the defendant is unaware of the precise extent of his punishment for significant periods of time, or even for life, yet these sanctions have not been considered to be violative of the Clause. Thus, there is no double jeopardy protection against revocation of probation and the imposition of imprisonment. See, e. g., Thomas v. United States, 327 F.2d 795 (CA10), cert, denied, 377 U.S. 1000, 84 S.Ct. 1936, 12 L.Ed. 1051 (1964). There are other situations where probation or parole may be revoked and sentence of imprisonment imposed, [citations omitted] While these criminal sanctions do not involve the increase of a final sentence, and while the defendant is aware at the original sentencing that a term of imprisonment later may be imposed, the situation before us is different in no critical respect. Respondent was similarly aware that a dangerous special offender sentence is subject to increase on appeal. His legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked. [- U.S. at-, 101 S.Ct. at 437, 66 L.Ed.2d at 346; emphasis supplied] [1]

¶5According to Justice Blackmun, the dictum found in United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354, 356-357 (1931), that an increase in sentence after the defendant *16had begun service of his sentence violated the double jeopardy guarantee against multiple punishment, had been erroneously derived from Ex Parte Lange, 18 Wall. 163, 85 U.S. 163,21 L.Ed. 872 (1874). In Ex Parte Lange the statute involved authorized imprisonment up to one year or a fine. After the defendant paid the fine, the trial court resentenced him to a year’s imprisonment. The Lange Court observed that to impose imprisonment after payment of the fine was to punish twice for the same offense. Justice Blackmun noted that no double jeopardy problem would have existed if the statute had provided punishment of both fine and imprisonment. He limited the Benzdictum and the holding in Lange “to Lange’s specific context.” - U.S. at -, 101 S.Ct. at 438, 66 L.Ed.2d at 347.

¶6Justice Blackmun then concluded:

Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal.

Under such circumstances there can be no expectation of finality in the original sentence. See S.Rep.No.91-617, p. 97 (1969); Dunsky, The Constitutionality of Increasing Sentences on Appellate Review, 69 J.Crim.L. & Criminology 19, 32 (1978). [Ibid.]

¶7Thus the multiple punishment feature of the Double Jeopardy Clause only prevents the subjection of a defendant to punishment in excess of that prescribed by the legislature.2 That this construction accords with the Supreme Court’s understanding has recently been confirmed in Albernaz v. United States, - U.S.-, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), wherein the Court wrote, albeit in dictum, with respect to the Double Jeopardy Clause:

Thus the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended ... to impose multiple punishment, *17imposition of such sentences does not violate the Constitution. [Id. at-, 101 S.Ct. at 1145,67 L.Ed.2d at 285]

¶8Application of the reasoning and doctrine in DiFrancescoto the factual pattern of the instant case indicates the absence of a double jeopardy obstacle. The trial court had the authority to suspend “the imposition or execution of sentence, and also to place the defendant on probation....” N.J.S.A. 2A:168-1. Upon violation of the probation terms, the trial court was empowered to “impose any sentence which might originally have been imposed.” N.J.S.A. 2A:168-4. The statutory underpinnings satisfying double jeopardy are self-evident. The authorization for imposition of any sentence contemplated an increased sentence over that originally imposed before sentence was suspended. Accordingly, a defendant should not have any expectation of finality in the sentence whic-’ has been suspended. See United States v. DiFrancesco,- U.S. at -, 101 S.Ct. at 438, 66 L.Ed.2d at 347. Thus the defendant could lawfully be sentenced to any term within the statutory maximum, less credit for time served.

¶9The defendant was not subject to a second trial. The suspension of his sentence was at his request. “[T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” United States v. Scott, 437 U.S. 82, 90, 98 S.Ct. 2187, 2193, 57 L.Ed.2d 65, 79 (1978). Increase of the sentence after defendant had commenced serving his sentence did not subject him to multiple punishment. He was entitled to credit for all time previously served and his total period of incarceration would be substantially less than the maximum period for which he could have been imprisoned.

¶10If defendant had been incarcerated pending trial, convicted, given a custodial sentence which was suspended and placed on probation, it is conceded double jeopardy would not prevent a court from imposing a greater sentence upon violation of conditions of probation. United States v. DiFrancesco,- U.S. at -, 101 S.Ct. at 438, 66 L.Ed.2d at 346; see In re White, 18 *18N.J. 449 (1955). If defendant had been convicted, sentenced and incarcerated while his appeal was pending, and later obtained a new trial, double jeopardy would not bar the court from imposing a greater sentence after a second conviction. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). If in these circumstances the sentencing slate is wiped clean, why is it not equally so where the defendant has violated his probation which had been granted at his request after commencement of his incarceration?

¶11I would hold the Double Jeopardy Clause did not bar defendant’s resentencing.

¶12An additional consideration in this case, however, is the legitimate expectation of the defendant in view of what occurred at the time sentence was suspended. The majority opinion has referred to that expectation by calling attention to the standard form of the Monmouth County Probation Department which states:

If you fail to observe the conditions of your probation you may be returned to court and required to serve your sentence in an institution.

¶13The defendant’s signature was affixed to the form beneath a legend that the statement had been read and explained to him. However, at the hearing on the motion to suspend the sentence, the trial court-made no reference to the consequences of defendant’s failure to adhere to the probation terms. Moreover, during the hearing on violation of probation, defendant argued that the sentence could not legally exceed the custodial term originally fixed. Accordingly, it may well have been defendant’s expectation that his custodial sentence would remain the same because of the statement in the form. If upon resentencing the trial court had found that was a reasonable expectation, foreclosing imposition of a longer sentence would have been warranted as a matter of fundamental fairness or due process. Cf. State v. Taylor, 80 N.J. 353, 364 (1979) (validity of plea bargain depended on “defendant’s reasonable expectations drawn from the terms of the bargain”). I would remand the matter to the trial court for a factual determination on this issue.

¶14*19I fully agree with and join in the majority opinion with respect to the disallowance of sentence credit for time spent on probation and the applicability of N.J.S.A. 2A: 168-4.

¶15For reversal — Chief Justice WILENTZ, and Justices SULLIVAN, PASHMAN, CLIFFORD, HANDLER and POLLOCK — 6.

¶16Concurring in part and dissenting in part — Justice SCHREIBER — 1.