(1990) (under federal law, restitution cannot be imposed
on dismissed counts of indictment).
Drug-by money is not recoverable as restitution, but it
should be taken into account by trial court in connection
with imposition of fine. State v. Newman, 132 N.J. 159,
177 (1993).
A. Fines
A defendant is entitled to monetary credit of $20 per
day against his outstanding fine, for time spent in custody
awaiting hearing for summary collection of fine. N.J.S.A.
2C:46-2a; State v. Joseph, 238 N.J. Super. 219 (App. Div.
1990).
B. Penalties
VCCB penalties can be imposed only for crimes
committed after the effective date of the code (September
1, 1979). N.J.S.A. 2C:43-3.1; State v. Dela Rosa, 327 N.J.
Super. 295, 303 (App. Div.), certif. denied 154 N.J. 191
(2000); State v. Chapman, 187 N.J. Super. 474, 477 (App.
Div. 1986).
Safe Neighborhoods Services Fund (SNSF) Assess-
ments do not apply to offenses committed before effective
date of statute (August 2, 1993). N.J.S.A. 2C:43-3.2; State
v. Smith, 307 N.J. Super. 1 (App. Div. 1997), certif. denied
153 N.J. 216 (1998).
VCCB penalties and SNSF assessments do not apply
to convictions for refusal to take Breathalyzer test. State
v.Tekel, 281 N.J. Super. 502, 510 (App. Div. 1995).
XIV. STATE’S RIGHT TO APPEAL-N.J.S.A.
2C:44-1f(2) (see also APPEALS, this Digest)
The State must file its notice of appeal within 10 days
or right to appeal is lost. See State v. Farr, 183 N.J. Super.
463 (App. Div. 1982); State v. Watson, 183 N.J. Super. 481
(App. Div. 1982).
In State v. Saunders, 107 N.J. 609 (1987), the Supreme
Court held that the right of appeal provided by N.J.S.A.
2C:44-1f(2) does not violate the fifth amendment’s double
jeopardy clause despite the fact that a defendant may
remain incarcerated for up to ten days while the State
perfects its appeal. The clear and unambiguous terms of
the statute remove any expectation of finality that a
defendant may vest in his sentence; its stay provisions
insure that he will not begin serving that sentence until the
State’s notice of appeal is filed. Bail must be established by
the trial court in accordance with R. 2:9-3(d) within a
reasonable period after the State’s appeal is taken.A defendant must be advised at sentencing of the
applicability of the election and waiver provisions of R. 2:9-
3(d). However, in view of the Supreme Court’s conclusion
that R. 2:9-3(d) is inapplicable until the State perfects its
appeal, it is self-evident that this advice to a defendant is
not required until the bail hearing is held. State v. Saunders,
107 N.J. at 617 n.7; State v. Christensen, 270 N.J. Super.
650 (App. Div. 1994).The State cannot appeal sentence as lenient in cases in
which it: 1) recommended the sentence imposed or a lesser
sentence; or 2) waived its right to take a position at
sentencing, or 3) waived its right to appeal. State v.
Partusch, 214 N.J. Super. 473, 476 (App. Div. 1987). See
also, State v. Ferrara, 197 N.J. Super. 1 (App. Div. 1984);
State v. Paterna, 195 N.J. Super. 124, 126 (App. Div.
1984). However, State can appeal when a probationary or
non-custodial term is imposed where the plea bargain
involved a downgrade from second to third degree for
purposes of sentencing. State v. Partusch, 214 N.J. Super. at
476.State’s appeal of improper merger is not barred by
double jeopardy. State v. Gross, 216 N.J. Super. 92, 97
(App. Div. 1987), certif. denied 108 N.J. 194 (1987).State had no right to appeal discretionary sentence
because of mistakes it made in calculating sentence
recommendation pursuant to State v. Brimage 153 N.J. 1
(1998), and the Attorney General’s Guidelines. The
Appellate Division did hold however, that trial judges may
permit the prosecution to withdraw its plea offer if it has
made an honest mistake and acts before defendant is
sentenced. State v. Veney 327 N.J. Super. 458 (App. Div.
2000).In State v. Christensen, 270 N.J. Super. 650 (App. Div.
1994), the Appellate Division rejected defendant’s claim he
acquired a legitimate expectation in the finality of
probationary sentence when the probation department
mistakenly directed him to report, and he had commenced
serving a probationary sentence which had been stayed
pending the State’s appeal.State could not challenge as illegal a sentence imposed
after remand where it did not raise the alleged illegality
until four months after it discovered defendant had been
resentenced. State v. Tavares, 286 N.J. Super. 610 (App.
Div.), certif. denied 144 N.J. 376 (1996).