State v. Garland

544 A.2d 417, 226 N.J. Super. 356
New Jersey Superior Court Appellate Division·Decided July 12, 1988·Published·Cited by 8 cases

Opinion

226 N.J. Super. 356 (1988)
544 A.2d 417

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JANNELL GARLAND, DEFENDANT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Argued May 24, 1988.
Decided July 12, 1988.

*358 Before Judges MICHELS and A.M. STEIN.

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Alfred A. Slocum, Public Defender, attorney; Daniel V. Gautieri, of counsel and on the brief).

Robert G. Brehme, Deputy Attorney General, argued the cause for respondent (W. Cary Edwards, Attorney General of New Jersey, attorney; Robert G. Brehme, of counsel and on the letter brief).

The opinion of the court was delivered by MICHELS, P.J.A.D.

Defendant Jannell Garland challenges the sentences imposed as a result of her convictions for bail jumping and violation of probation entered on guilty pleas.

A brief synopsis of the procedural history giving rise to this appeal is helpful to an understanding of the decision we reach today. On November 22, 1985, following plea negotiations, defendant pleaded guilty to two charges of possession of controlled *359 dangerous substances, to wit, heroin, with intent to distribute in violation of N.J.S.A. 24:21-19a(1). The State, for its part of the plea agreement, agreed to dismiss other criminal charges set forth in Indictment No. 85-08-1240-B. On December 22, 1985, while awaiting sentencing on the aforementioned drug charges, defendant was arrested and charged with armed robbery. Defendant was then incarcerated from December 23, 1985, until January 5, 1986. On January 6, 1986, defendant was sentenced on the drug charges contained in Indictment No. 85-08-1240-B to an 18-month probationary term, with 210 days to be served in the county jail as a condition of probation. Defendant was incarcerated on the drug charges from January 6, 1986, until April 11, 1986. However, defendant remained incarcerated on the pending armed robbery charges from April 11, 1986, until June 25, 1986, when she was released on bail.

On October 14, 1986, defendant failed to appear in court for a pre-trial hearing and a bench warrant was issued for her arrest. On November 23, 1986, defendant was incarcerated on the pending robbery charges. (Indictment No. 86-01-0044-B).

Pursuant to a plea agreement entered into on January 6, 1987, the State agreed to dismiss the charges listed in the robbery indictment (No. 86-01-0044-B) if defendant would plead guilty to bail jumping, the charge cited in an accusation (No. 87-01-0014-B) which was filed the same day. At the plea hearing, defendant admitted that she had failed to appear in court on October 14, 1986. Defendant then pleaded guilty to bail jumping, a third degree offense, and pursuant to the plea agreement, Indictment No. 86-01-0044-B was dismissed. The State also agreed at the time of the plea that defendant would have the right to argue that she was entitled to jail credit on the bail jumping sentence for time served in custody on the robbery indictment.

On February 6, 1987, defendant was sentenced on the bail jumping charge to a five-year term of imprisonment, with a one-year period of parole ineligibility. Defendant was also sentenced to a consecutive five-year term of imprisonment for *360 the violation of probation. Further, on other unrelated drug charges to which defendant had previously been sentenced, (Indictment No. 85-08-1312-B), the trial court vacated probation and sentenced defendant to a concurrent five-year term of imprisonment. In addition, the trial court found initially that defendant was entitled to 166 days of jail credit for time spent in custody from December 23, 1985, to January 5, 1986, and April 11, 1986, to June 25, 1986, and from November 23, 1986, to February 6, 1987. However, the trial court subsequently determined that it had erroneously awarded jail credit in the amount of 166 days. Since the bail jumping charge came into existence on January 6, 1987, the trial court concluded that defendant would receive jail credit only from January 6, 1987, until February 6, 1987, a total of 32 days. Defendant appealed.

Defendant contends that her sentences should be reduced and additional jail credits awarded or, alternatively, her sentences vacated and the matter remanded to the trial court for further proceedings consistent with the principles set forth in State v. Kovack, 91 N.J. 476, 483-484 (1982).

I.

Defendant first contends that the trial court erred in its computation of jail credits. Specifically, defendant argues that she should be awarded 166 days of jail credit consistent with the pre-sentence report, which indicates that defendant was incarcerated from December 23, 1985, to January 5, 1986, from April 11, 1986, to June 25, 1986, and from November 23, 1986, to February 6, 1987. The pre-sentence report further indicates, with respect to time served by defendant, that:

Excluded from the period of incarceration is the period 1-6-86 to 4-11-86 when she was serving a sentence imposed on 1-6-86 in reference to the prior indictments 85-08-1240-B and 85-08-1312-B. Also, excluded is the period 11-13-86 to 11-22-86, as she was serving an unrelated sentence imposed on 11-14-86 by the Egg Harbor Township Municipal Court. During the period 6-26-86 to 11-12-86, she was on the street.

Defendant's position is that although jail credit in the instant case was not mandated by R. 3:21-8, the equities of the *361 present situation call for the 166-day credit initially awarded. She argues that had the State permitted defendant to plead guilty to a third degree offense in the robbery indictment, defendant would be clearly entitled to the full 166 days of credit under R. 3:21-8. Alternatively, defendant contends that she should be awarded jail credit as a result of being confined from November 23, 1986, to February 6, 1987 (76 days), because this period of confinement was entirely the result of her "jumping bail." Defendant also contends that since the State could have drafted the bail jumping accusation at any time subsequent to her failure to appear on October 14, 1986, the State should not be able to prolong her confinement as a result of its own delay in not filing the accusation until January 6, 1987.

R. 3:21-8 provides that "[t]he defendant shall receive credit on the term of a custodial sentence for any time he has served in custody in jail or in a state hospital between his arrest and the imposition of sentence." "However, the rule has never been interpreted to apply to confinement not directly attributable to the particular offenses giving rise to the initial incarceration." State v. Allen, 155 N.J. Super. 582, 584 (App.Div. 1978), certif. den. 77 N.J. 472 (1978); State v. Council, 137 N.J. Super. 306 (App.Div. 1975); State v. Beatty, 128 N.J. Super. 488 (App. Div. 1974); State v. Marnin, 108 N.J. Super. 442, 445 (App.Div. 1970), certif. den. 55 N.J. 598 (1970), cert. den. 400 U.S. 835, 91 S.Ct. 70, 27 L.Ed.2d 67 (1970). R. 3:21-8 must be distinguished from N.J.S.A. 2C:44-5b(2), "gap-time credit", which relates to time spent in imprisonment as a result of a sentence previously imposed and has no application unless defendant, while incarcerated, is sentenced for an offense occurring before the prior sentence. See State v. Jones, 184 N.J. Super. 626, 629 n. 2 (Law Div. 1982); See also Richardson v.

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State v. Garland, 544 A.2d 417, 226 N.J. Super. 356 (N.J. Ct. App. 1988).

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