Opinion
Submitted June 1, 1953 —
Decided June 8, 1953.
Appeal from the Superior Court, Appellate Division.
On appeal from a judgment of the Superior Court, Appellate Division, who filed the following opinion:
"The opinion of the court was delivered by FRANCIS, J.C.C. (temporarily assigned).
"Alleging that his sentence on June 29, 1950 of 5 to 15 years in New Jersey State Prison is illegal, appellant moved for its correction. The application was denied by the sentencing court and this appeal followed.
"The complaint is that the prisoner spent a total of 384 days in the county jail between the time of his arrest and the date on which the State Prison sentence was imposed. This detention, he says, constituted a deprivation of his right to a speedy trial, and further, because of the lapse of time after the pleas of guilty to the various indictments, under R.S. 2:192-1 the court lost jurisdiction to impose a sentence.
"Anderson was arrested on June 10, 1949. It appears that he had been a building contractor and had accepted sums of money in connection with contracts to build a substantial number of homes. He was indicted first for uttering a worthless check and on July 27, 1949, through competent counsel of his own selection, he entered a plea of not guilty. Fourteen more accusations having been returned, on September 27, 1949, again through counsel, the same type pleas were recorded. Ten of these accusations charged obtaining checks under false pretenses, two charged misappropriation of trust funds paid to a contractor, and two charged obtaining money under false pretenses. Then on November 2, 1949 all these pleas were retracted and pleas of guilty were offered and accepted by the court.
"Aside from the fact that no demand was ever made by his counsel for a trial and the intervention of the summer shortly after the arrest, the mere recitation of the chronology of event from apprehension to pleas of guilty demonstrates that there was no denial of any constitutional right to a speedy trial.
"On November 23, 1949 Anderson appeared for sentence. At this time the same counsel made representations to the court that an investigation would reveal certain favorable facts as to the use by the defendant of the moneys involved and he requested a delay in the sentence for this purpose. The record is plain that all parties concerned realized that the prisoner's affairs were in an involved and confused state, that an accountant's services were advisable and that the investigation would be time consuming. With this in mind the prosecutor prepared a waiver of `the imposition of sentence within the time limited by law.' It was signed by appellant and witnessed by his counsel in open court.
"The statement was made by Anderson at the hearing that he was not aware of the execution of the waiver, that it was not explained to him by the court or his counsel, and that he did not read it. We agree with the trial court that the overwhelming weight of the evidence is to the contrary.
"The postponement of sentence having been granted in the interest of the prisoner, the record is barren of any evidence supporting the view that unreasonable delay followed before the term of imprisonment was finally fixed. In fact, at the hearing a letter from the court to his counsel complaining about the delay in completing the investigation was marked in evidence.
"The argument is advanced that since R.S. 2:192-1 laid the duty on the court of imposing sentence upon a defendant within 90 days after conviction, at the expiration of this time jurisdiction to do so was lost. This is unsound as the statutory requirement was directory, not mandatory or jurisdictional. In re Hardman, 131 N.J.L. 257 ( Sup. Ct. 1944).
"In any event the judgment of imprisonment here was imposed after our new rules became effective. Rule 2:7-10, which controls the problem, provides that sentence shall be imposed without unreasonable delay. As already indicated, no justification exists for the conclusion that such delay existed.
"In any event, it is noted that the trial court directed that credit in the service of the imposed sentence be given for the 384 days of county jail incarceration. While there may have been some confusion in the State Prison records about this, any possible doubt on the subject has been eliminated by the order made in this proceeding.
"The denial is affirmed."
For the appellant, Mr. Oscar S. Anderson, in propria persona.
For the respondent, Mr. Harry L. Towe and Mr. Paul T. Huckin.
The judgment is affirmed for the reasons expressed in the opinion of Judge Francis in the court below.
For affirmance — Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD, BURLING, JACOBS and BRENNAN — 7.
For reversal — None.