medical treatment. State v. E.R., 273 N.J. Super. at 272-
- Change of sentence essentially transferred defendant
from confines of bed in prison hospital to confines of bed
at home and as such did not violate presumption of
imprisonment. Id. at 273-274. Dissenting opinion by
Judge Brochin believed that tragic circumstances
warranted clemency and not resentencing. Id. at 275. - Release to Drug or Alcohol Treatment Program
In State v. Kent, 212 N.J. Super. 635 (App. Div. 1986),
certif. denied 107 N.J. 65 (1986), the Appellate Division
held that “changed circumstances” are a prerequisite for a
R. 3:21-10(b)(1) motion for a transfer to a drug or alcohol
program. See, e.g., State v. Priester, 99 N.J. 123 (1985)
(court, in construing R. 3:21-10(b)(2) which permits
resentencing based upon the illness or infirmity of the
defendant, held that an essential predicate to review is that
a change of circumstances must have occurred since
sentencing).
Thus, where a defendant’s need for a drug or alcohol
abuse program and the availability of that program are
essentially the same when a motion for a change of sentence
is filed as at the time of original sentencing, the policy of
finality of sentences should mandate denial of the motion.
State v. Kent, 212 N.J. Super. at 641.
The granting of defendant’s motion for transfer to
drug program resulted only in suspension of extended term
custodial sentence pending successful completion of the
drug rehabilitation program and probationary term. Thus
when defendant violated his probation he was subject to
reincarceration on his original sentence. State v. Williams,
299 N.J.Super. 264, 270 (App. Div. 1997).
A defendant who is serving a Graves Act sentence may
not make an application for change or reduction of
sentence under R. 3:21-10(b). State v. Mendel, 212 N.J.
Super. 110, 113 (App. Div. 1986). Where a parole
ineligibility term is required or mandated by statute, an
application may not be granted under R. 3:21-10(b) so as to
change or reduce that sentence prior to the expiration of the
statutorily mandated parole ineligibility term. State v.
Diggs, 333 N.J. Super. 7, 8 (App. Div.), certif. denied 165
N.J. 678 (2000) (mandatory drug sentence); State v.
Mendel, 212 N.J. Super. 110 (Graves Act).
However, where a defendant is serving a parole
ineligibility term above that required to be served as a
minimum mandatory period of parole ineligibility, the
application can be considered under R. 3:21-10(b)
consistent with case law and based on circumstances
appearing after completion of the parole ineligibility term
required by statute. State v. Mendel, 212 N.J. Super. at 113-
114.XX. INCREASE OF SENTENCE ON RESEN-
TENCING (See also DOUBLE JEOPARDY, this
Digest)
Imposition of harsher sentence following successful
appeal and reconviction violates due process unless special
findings of justification overcome presumption of
vindictiveness. Court must give reasons for increase of
sentence after defendant’s successful appeal. North
Carolina v. Pearce, 395 U.S. 711, 723-25, 89 S.Ct. 2072,
2080, 23 L.Ed.2d 656, 668-70 (1969). Those reasons
must be based upon objective information concerning
identifiable conduct on the part of defendant occurring
after the time of the original sentencing proceeding. Id.,
395 U.S. at 723-726; State v. Pindale, 279 N.J. Super. 123,
129 (App. Div.), certif. denied 142 N.J. 449 (1995); State v.
Bauman, 298 N.J. Super. 176, 201-202 (App. Div.), certif.
denied 150 N.J. 25 (1997).Presumption of vindictiveness does not apply when
sentence imposed after trial is greater than that previously
imposed after guilty plea. Alabama v. Smith, 490 U.S. 794,
801, 109 S.Ct. 2201, 2205-2206, 104 L.Ed.2d 865 (1989).Imposition of greater sentence following retrial after
successful appeal resulted in remand by appellate court
because trial court gave no reasons for imposing a greater
sentence than the one originally imposed after the first trial.
State v. Pindale, 279 N.J. Super. 123, 128-130 (App. Div.
1995), certif. denied 142 N.J. 449 (1995).Where defendant’s appeal resulted in merger of two
offenses, double jeopardy did not bar resentencing on
remaining counts, provided defendant’s aggregate sentence
is not increased. State v. Rodriguez, 97 N.J. 263 (1984).In State v. Roddy, 210 N.J. Super. 62 (App. Div. 1986),
the Court held that merger of two counts of indictment on
appeal would have defeated State’s reasonable expectations
under plea agreement if its original terms were enforced;
thus the parties were returned to status quo ante and
defendant would have option to withdraw plea or waive
objection to enhanced sentence.A defendant whose sentence has been vacated on
appeal may be resentenced to a longer term on one of a
related group of convictions without violating principles of
double jeopardy provided there is no increase in his