In State v. Baylass, 114 N.J. 169 (1989) and State v.
Molina, 114 N.J. 181 (1989), the Supreme Court held that
the sentence imposed after revocation of probation should
focus on the original offense, rather than on the violation as
a separate offense.
The only aggravating and mitigating factors that the
trial court may consider in resentencing a probation
violator are those factors that the trial court found at the
time of the original sentencing. State v. Baylass, 114 N.J. at
- The court may reweigh the mitigating factors in light
of the probation violation and determine that they are no
longer applicable. Id. at 177.
The terms of the original plea agreement do not survive
a violation of probation. State v. Frank, 280 N.J. Super. 26,
40 (App. Div.), certif. denied 141 N.J. 96 (1995). Thus, the
State’s original recommendation for a sentencing
downgrade pursuant to N.J.S.A. 2C:44-1f(2) does not
survive a violation of probation because the sentence must
depend on a balancing of aggravating and mitigating
factors at that time. State v. Frank, supra; State v. Vasquez,
129 N.J. 189, 206 (1992).
After revoking a defendant’s probation, a trial court is
required to impose a sentence based upon the presumptive
sentence and the balancing of the aggravating and
mitigating factors which survived the violation of
probation. State v. Frank, 280 N.J. Super. at 41.
There is a presumption of consecutive sentences
whenever a defendant violates probation by committing a
new offense. State v. Sutton, 132 N.J. 471, 484 (1993).
Custodial sentence imposed on probation violation
that exceeded original term imposed as condition of
probation (and was already served) did not violate double
jeopardy. State v. Franklin, 198 N.J. Super. 407, 409-410
(App. Div. 1985).
When defendant was originally sentenced to extended
term and subsequently placed on probation after a
successful motion for transfer to drug treatment program,
R. 3:21-10b1, trial court could reinstate original extended
term sentence when defendant violated probation by
committing new offenses. State v. Williams, 299 N.J.
Super. 264, 270 (App. Div. 1997).
XIII. RESTITUTION, FINES, AND VCCB
PENALTIES
For general law on restitution see: State v. Harris, 70
N.J. 586 (1976); State v. DeBonis, 58 N.J. 182 (1971). In
State v. Saperstein, 202 N.J. Super. 478 (App. Div. 1985),
the court ruled Kovack applied to restitution imposition).
But see, State v. Rhoda, 206 N.J. Super. 584 (App. Div.),
certif. denied 105 N.J. 524 (1986) (Kovack not applicable to
restitution).The application of increased mandatory penalty
provisions to an offense that occurred prior to amendment
is constitutionally barred by the prohibition of ex post facto
legislation found in both the federal and state
constitutions. State v. Dela Rosa, 327 N.J. Super. 295, 303
(App. Div.), certif. denied 164 N.J. 191 (2000).Trial court must have hearing on the amount of
restitution and defendant’s ability to pay. N.J.S.A. 2C:44-
2c; State v. Newman, 132 N.J. 159 (1993).Where there is a good faith dispute over the amount of
the loss or defendant’s ability to pay, the trial court must
hold a hearing on the issue. State v. Jamiolkoski, 272 N.J.
Super. 326 (App. Div. 1994) (dispute over restitution
amount in PTI form signed by defendant).Defendant was not entitled to restitution hearing
where no dispute existed as to amount of restitution and
defendant raised no objection to concession made by his
counsel that defendant had funds to pay restitution nor did
he dispute his ability to pay. State v. Orji, 277 N.J. Super.
582 (App. Div. 1994).Orders of restitution imposed as part of defendant’s
criminal sentence remain intact as part of that sentence
regardless of the fact that defendant’s period of probation
has expired. State v. Kemprowski, 265 N.J. Super. 471
(App. Div. 1993).A trial court is not required to consider whether
alternative methods of punishment to imprisonment were
appropriate in case where defendant willfully failed to
comply with restitution order while on probation, which
was consequently revoked. State v. Townsend, 222 N.J.
Super. 273, 280 (App. Div. 1988).In order to impose restitution on dismissed counts of
an indictment: 1) a factual basis for the restitution must be
established at the time of the plea; 2) defendant must be
informed that restitution may be imposed on these counts,
and 3) there should be a relationship between the
restitution and the goal of rehabilitation with respect to the
offense for which defendant is being sentenced. State v.
Bausch, 83 N.J. 425 (1980); State v. Kruegar, 241 N.J.
Super. 244 (App. Div. 1990). But see, Hughey v. United
States, 495 U.S. 411, 110 S. Ct. 1979, 109 L.Ed.2d 408