Super. 105 (App. Div. 1984), the Appellate Division
stated that N.J.S.A. 2C:44-1f(2) applies only to
sentences imposed upon “conviction of crime” and under
both the old and new juvenile laws, a juvenile may be
adjudged “delinquent” but not a “criminal.”
If the State seeks to increase an illegal sentence, it is
necessary to file a cross-appeal (nunc), State v. Heisler, 192
N.J. Super. 586 (App. Div. 1984), but the prosecutor
should be sensitive to the restrictions of North Carolina v.
Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969). See also
State v. Eigermann, 280 N.J. Super. 331, 339 (App. Div.
1995); State v. Sheppard, 125 N.J. Super. 332 (App. Div.
1973); State v. Rhoda, 206 N.J. Super. 584 (App. Div.),
certif. denied, 105 N.J. 524 (1986) (permitting increase
in amount of restitution following remand for lack of
proper procedures and hearing at time of sentencing).
In addition, R. 2:3-1(b)(5) permits the State to
appeal an order reducing or modifying a sentence
pursuant to R. 3:21-10(b). State v. Giorgianni, 189 N.J.
Super. 220 (App. Div.), certif. denied, 94 N.J. 569
(1983); State v. Stanley, 149 N.J. Super. 326 (App. Div.),
certif. denied, 75 N.J. 21 (1977); State v. Williams, 139
N.J. Super. 290 (App. Div. 1976), aff’d o.b. 75 N.J. 1
(1977).
The State may appeal from an improper merger of
offenses, and such a claim is not barred by double
jeopardy. State v. Gross, 216 N.J. Super. 92, 97 (App.
Div.), certif. denied, 108 N.J. 194 (1987). When the
defendant’s underlying convictions are interdependent,
justifying merger, the appellate court, vacating one of
these sentences on the vacated conviction, can also in its
sound discretion vacate the sentence on the remaining
conviction when the sentences as imposed were
interdependent and remand for imposition of an
increased sentence, but the new aggregate sentence
cannot be in excess of the sentence originally imposed.
State v. Rodriguez, 97 N.J. 263 (1984).
The State may appeal a decision of the Resentencing
Panel based on legal error. State v. Johnson, 176 N.J.
Super. 1, 7 (App. Div. 1980), summarily remanded to
Resentencing Panel, 87 N.J. 335 (1981). The State may
also appeal a decision of the State Parole Board. In re
Trantino Parole Application, 89 N.J. 347 (1982); In re
Hawley, 192 N.J. Super. 85, 89-90 (App. Div. 1983),
aff’d 98 N.J. 108 (1984).
VIII. STAYS PENDING APPEAL
R. 2:9-3 governs the granting of stay pending review
of a criminal action. A stay is automatic in death penalty
cases if an appeal is taken unless the court orders
otherwise. In all other criminal actions the filing of the
notice of appeal will not automatically stay the sentence.
A sentence to pay a fine or an order placing defendant on
probation may be stayed by a trial court on appropriate
terms if an appeal or Notice of Petition for Certification
is filed. If the court denies a stay, it must briefly state it
reasons, and the application can be renewed before the
appellate court. Id. According to R. 2:9-3(b), a sentence
of imprisonment may not be stayed, but defendant may
be admitted to bail pursuant to R. 2:9-4. See BAIL, supra.When the State appeals from a sentence pursuant to
N.J.S.A. 2C:44-1f(2), a stay is mandatory. See discussion
in § VII, above.A stay in a summary contempt matter is automatic
with the filing of an appeal. R. 1:1-10; see also R. 2:9-
5(a).IX. STANDARDS OF REVIEW ON APPEAL
For a general overview, see Ellen T. Wry, New Jersey
Standards of Appellate Review (July 1999). See also,
Sentencing, Sixth Amendment (Ineffective Assistance of
Counsel, Speedy Trial), Prosecutors (Misconduct),
Contempt, Juveniles, pretrial Intervention, Post
Conviction Relief, Municipal Courts, Probation &
Parole.Standards for appellate review are guidelines used by
the reviewing courts to decide whether error has occurred
in the trial court or administrative agency, and whether
reversal or other action is warranted.A. Reasons for Decision
An appeal lies not from a written or oral decision of
a court, but only from a judgment or order. Heffner v.
Jacobson, 100 N.J. 550, 553 (1985); State v. Guzman,
313 N.J. Super. 363, 371 n. 1 (App. Div.), certif. denied,
156 N.J. 424 (1998); Mills v. J. Daunoras Const., Inc.,
278 N.J. Super. 373, 378-79 (App. Div. 1995). An order
or judgment will be affirmed on appeal if it is correct, even
though the trial judge gave the wrong reasons for it. Isko
v. Planning Bd., 51 N.J. 162, 175 (1968); GNOC, Corp.
v. Dir., Div. of Taxation, 328 N.J. Super. 467, 474 (App.
Div. 2000); Gerber ex rel. Gerber v. Springfield Bd. of
Educ., 328 N.J. Super. 24, 40 (App. Div. 2000); State v.