XV. RIGHT OF ALLOCUTION - R. 3:21-4(b)
Defendant must be given the right to speak before
sentence is imposed. Failure to do so may constitute
reversible error. State v. Cerce, 46 N.J. 387 (1966)
(technical when raised in PCR but requires remand when
raised on direct appeal).
The right of allocution is a personal right that
defendants themselves decide whether to execute.
Accordingly, the trial court should address the defendant,
rather than counsel, concerning the right of allocution.
State v. Bey, 161 N.J. 233, 277 (1999), cert. denied 120
S.Ct. 2693 (2000).
A challenge to the trial court’s failure to afford
defendant an opportunity to make a statement of
allocution must be raised on direct appeal. State v. Bey, 161
N.J. at 276; State v. Cerce, 46 N.J. at 396. Otherwise, the
claim is barred from post-conviction review under R. 3:22-
4, because the issue could have been raised on direct appeal;
the denial of allocution does not result in fundamental
injustice, and allocution is not required by the federal or
state constitutions. State v. Bey, 161 N.J. at 276.
XVI. CONFLICT BETWEEN ORAL SENTENCE
AND JUDGMENT OF CONVICTION
Oral sentence usually takes precedence over written
judgment of conviction. State v. Warmbrun, 277 N.J.
Super. 51, 58 n. 2 (App. Div. 1994), certif. denied 140 N.J.
277 (1995); State v. Pohlabel, 40 N.J. Super. 416, 423 (App.
Div. 1956) (oral controls); State v. Womack, 206 N.J.
Super. 564 (App. Div. 1985), certif. denied 103 N.J. 482
(1986).
The sentencing transcript is the true source of the
sentence. State v. Walker, 322 N.J. Super. 535, 556 (App.
Div.), certif. denied 162 N.J. 487 (1999).
XVII. ILLEGAL SENTENCES
Nothing in the State or federal constitutions preclude
a court from correcting an illegal sentence by imposing a
mandatory minimum term and therefore increasing the
sentence imposed. State v. Baker, 138 N.J. 89 (1994), aff’g
270 N.J. Super. 55 (App. Div. 1994), aff’d on habeas, Baker
v. Barbo, 117 F.3d 149 (3d Cir.), cert. denied 528 U.S. 911
(1999).
An illegal sentence is one which is inconsistent with the
requirements of the controlling sentencing statutes or
constitutional principles. State v. Veney, 327 N.J. Super.
458, 462 (App. Div. 2000).A sentence is not in accord with the law if it fails to
include a legislatively mandated term of parole ineligibility.
State v. Murray, 162 N.J. 240, 247 (2000).If original sentence imposed on defendant is illegal,
sentence may be corrected at any time, even if increase in
term of imprisonment is required. State v. Baker, 270 N.J.
Super. 55 (App. Div. 1994), aff’d o.b. 138 N.J. 89 (1994);
State v. Horton, 331 N.J. Super. 92, 98 (App. Div. 2000);
State v. Veney, 327 N.J. Super. 458, 462 (App. Div. 2000);
State v. Mercadante, 299 N.J.Super. 522, 529 (App. Div.),
certif. denied 150 N.J. 26 (1997).An illegal sentence can be corrected even if it means
increasing the term of the custodial sentence that defendant
has begun to serve. State v. Eigenmann, 280 N.J.Super. 331,
337 (App. Div. 1995); State v. Mercadante, 299 N.J.Super.
at 529.Where the legislature has mandated a particular
sentence or collateral consequence of the sentence, the trial
court has a continuing authority and responsibility to
implement that statutory directive if it inadvertently fails to
do so at the time of conviction. State v. Ercolano, 335 N.J.
Super. 236, 243 (App. Div. 2000). (forfeiture of public
employment was mandatory, notwithstanding fact that
forfeiture was not raised at time of conviction).If the sentence imposed on defendant is illegal, the
State may appeal and, in the event of resentencing, double
jeopardy will not prevent the court from imposing a more
onerous sentence. State v. Luna, 278 N.J. Super. 433, 436
n.1 (App. Div. 1995).Defendant’s extended life term with a 20 year parole
disqualifier was illegal because imposition of such a life
term mandated service of a 25 year period of parole
ineligibility. State v. Swint, 328 N.J.Super. 236, 262 (App.
Div.), certif. denied 165 N.J. 492 (2000).Probationary sentence imposed in violation of section
12 (N.J.S.A. 2C:35-12) plea agreement in drug case was
illegal and State had authority, if not duty, to appeal it.
State v. Leslie, 269 N.J. Super. 78, 86 (App. Div. 1993),
certif. denied 136 N.J. 29 (1994).Sentence which did not include statutorily mandated
community supervision for life under Megan’s Law,
N.J.S.A. 2C:43-6.4, was illegal. State v. Horton, 332 N.J.
Super. 92, 97-102 (App. Div. 2000).