Defendant could not avoid the statutorily required
minimum sentence for third conviction for driving while
intoxicated, N.J.S.A. 39:4-50, merely because the
municipal court imposed an illegal penalty on an earlier
conviction and the prosecutor failed to challenge that error
by filing an appeal. State v. Nicolai, 287 N.J. Super. 528,
531 (App. Div. 1996).
No defendant can claim a legitimate expectation of
finality in a sentence below the statutorily mandated
minimum. State v. Nicolai, 287 N.J. Super. at 532; State v.
Eigenmann, 280 N.J. Super. at 337.
State’s authority to appeal illegal sentence had not
expired even though defendant had served custodial
portion of probationary sentence. State v. Leslie, 269 N.J.
Super. 78, 86 (App. Div. 1993), certif. denied 136 N.J. 29
(1994).
State’s appeal of improper merger not barred by
double jeopardy. State v. Gross, 216 N.J. Super. 92, 97
(App. Div. 1987), certif. denied 108 N.J. 194 (1987).
XVIII. CREDIT FOR TIME SERVED
Credit awarded for presentence time served under R.
3:21-8 is referred to as “jail credits.” Sentence credits
awarded pursuant to N.J.S.A. 2C:44-5b(2) are “gap-time
credits,” since it applies to the gap between the imposition
of different sentences. Richardson v. Nickolopoulos, 110
N.J. 241, 242 (1988).
A. Jail Credit
R. 3:21-8 states that a defendant shall receive credit on
the term of a custodial sentence for any time served in
custody in jail or in a state hospital between arrest and
imposition of sentence. This rule applies only to
confinement directly attributable to the specific offense for
which sentence is being imposed. State v. Mercadante, 299
N.J.Super. 522, 529 (App. Div.), certif. denied 150 N.J. 26
(1997).
Defendant entitled to receive credit for any time he
served between his arrest and imposition of sentence. R.
3:21-8. Not entitled to credit for time spent in drug
program. State v. Ryan, 171 N.J. Super. 427 (App. Div.
1979), rev’d o.g. 86 N.J. 1 (1981), cert. denied 454 U.S. 880
(1981); State v. Reyes, 207 N.J. Super. 126 (App. Div.),
certif. denied 103 N.J. 499 (1986).
Defendant who is sentenced to a probationary term
with the condition that he serve a term in county jail is
entitled to credit for time served between arrest and
sentencing. State v. Carlough, 183 N.J. Super. 478, 484 n.1
(App. Div. 1985). He is also entitled to credit for time
spent on parole after he is released from county jail. State v.
Rosado, 256 N.J. Super. 126 (App. Div. 1992), aff’d 131
N.J. 423 (1993).Defendant not entitled to jail credit for time spent in
custody pending sentence on new charge committed while
on parole after a parole warrant/detainer was lodged. State
v. Black, 153 N.J. 438, 461 (1998); State v. Harvey, 273
N.J. Super. 572 (App. Div. 1994).When a parolee is taken into custody on a parole
warrant, the jail credit is attributable to the original offense
on which parole was granted and not to any new offense
committed while on parole. State v. Black, 153 N.J. 438,
461 (1998). If the parole warrant is withdrawn or parole is
not revoked and defendant is convicted and sentenced on
the new charges based on the same conduct that led to the
parole warrant, jail credit should be given against the new
sentence. Id.If parole is revoked, jail credit for time served from
parole warrant and sentence for new offense should be
credited to any period of reimprisonment ordered by the
Parole Board. State v. Black, 153 N.J. at 461.Defendant is not entitled to credit for time he willfully
and voluntarily absented himself without authorization.
Breeden v. N.J. Dept. of Corrections, 132 N.J. 457, 464
(1993).Defendant was not entitled to jail time credit pursuant
to R. 3:21-8 for the time he participated in an electronic
monitoring wristlet program as a condition of pretrial
release because it was not the equivalent of time served in
custody in jail or in a state hospital. State v. Mastapeter, 290
N.J. Super. 56 (App. Div.), certif. denied 146 N.J. 569
(1996).Defendant who resided in convent as condition of bail
was not entitled to credit for time served there. State v.
Mirakaj, 268 N.J. Super. 48, 53 (App. Div. 1993).
However, trial court could consider restrictions placed on
defendant’s liberty during time she resided in convent in
determining appropriate sentences under all the circum-
stances. Id.Defendant who voluntarily entered psychiatric
hospital as condition of bail was not entitled to credit for
time served there. State v. Towey, 114 N.J. 69, 86 (1989).