Respondents Brief — Adamo v. McCorkle

Supreme Cowt of the United States

Oocroszr Tzrm, 1953.

No. 561 :

ANTHONY ADAMO,

Petitioner,

vs.

LLOYD W. McCORKLE, Acting Principal Keeper

of the New Jersey State Prison at Trenton,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF NEW JERSEY.

BRIEF FOR THE RESPONDENT OPPOSING PETITION

FOR WRIT OF CERTIORARI.

EES SSS

GROVER C. RICHMAN, Jz.,

Attorney General of New Jersey,

HAROLD KOLOVSKEI,

Deputy Attorney General of New Jersey,

Bergen County Court House,

Hackensack, New Jersey.

Cc. WILLIAM CARUSO,

Deputy Attorney General of New Jersey,

Of Counsel, On the Brief.

Arthur W. Cross, Inc., Law Printers, 71-73 Clinton Street, Newark 5, N. J.

INDEX.

PAGE

I. Reference to Official Report of Opinion De-

livered in the Court below ..................

II. Counter-Statement Concerning Jurisdiction ..

III. Counter-Statement of the Case ..............

IV. Summary of the Argument .................

a on wo =

V. Tie Reps 2s arcane tka sinades is cae occded

Point One. The imposition of the fine did not

form part of the sentence, but it was one of

the conditions of the probation; and payment

of the fine did not constitute an execution of

the sentence. By placing the petitioner on

probation, the trial court impliedly sus-

pended the imposition of sentence ........ 5

A. The fine was a condition of the proba-

tion and not a part of the sentence for

Ct EIIND sos canescens cada dupuien ces 7

B. There was an implied suspension of im-

position of sentence and the judgment of

probation was legal ................... 11

Point Two. The Court’s action in imposing a

sentence of imprisonment for violation of

probation was in accordance with statutory

authority and it did not. constitute double

jeopardy or denial of due process of law .. 15

VE. Gene ei Coke ated cate bakeiwcs 23

ii

TABLE oF CasEs.

PAGE

Berman v. U. S., 302 U. S. 211, 58 S. Ct. ~ 64, 82 L.

eR EE ae ee an 11

Comm. v. Hottle, 139 Pa. Super. 128, 114 A. 2d 524

i ee can ancne bebe esnay bes 20

Comm. v. Smith, 130 Pa. Super. 536, 198 A. 812 (Pa.

ONE TE, <5 sssctackerts: rales ial heat bis ave 14

Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872 (1874) 17

Frankel v. U. S., 131 F. 2d 756 (C. C. A. 6, 1942) .. 18

Hollandsworth v. U. S., 34 F. 2d 423 (C. C. A. 4,

eae pokes babs Abe een that ee S0cs Svs 10

Kepner v. U. S., 195 U. S. 100, 49 L. Ed. 114, 24

a A ens is weenie w Athe 19

Korematsu v. U. S., 319 U. S. 482, 63 S. Ct. 1124, 87

ks Si cen teh canabae bi-ctneass 5 11, 12

Mitchem v. U. S., 193 F. 2d 55 (C. C. A. 5, 1951) .. 10

Roberts v. U. S8., 320 U. S. 264, 88 L. Ed. 41 (1943) 19, 22

Santos v. Esola, 50 F. 2d 516 (C. C. A. 9, 1931) .. 18

State v. Addy, 43 N. J. L. 113 (Sup. Ct., 1881) ....7,9, 10

State v. Braunstein, 5 N. J. Mis. R. 243 (Sup. Ct.,

SE RAGA CALE Kubanaenaueerecebtedavcldiaecnes. 7

State v. Clifford, 84 N. J. L. 595 (Sup. Ct., 1913) 7

State v. Cooper, 13 N. J. L. 361 (Sup. Ct., 1833) .. 22

State v. DiGiosia, 3 N. J. 413, 70 A. 2d 756 (S. C.,

I A ei ake ian Waa al idan wes cenit yo? 21

State v. Labato, 7 N. J. 137, 80 A. 2d 617 (S. C.,,

eG ain oa CK Mahan andes Cas sua ess 21

State v. Mowser, 92 N. J. L. 474, 106 A. 416 (E. &

EE iiss eho ob eeh CARR RMA saa ROn bx em so 21

State v. Osborne, 79 N. J. Eq. 430 (Ch., 1911) .... 7

State v. Pascal, 133 N. J. L. 528 (N. J. Sup. Ct.,

iii

PAGE

U. S. v. Murray, 275 U. S. 347, 48 8. Ct. 146, 72 L.

i OE CMD nas ese dk nkvebnesasd pos bers bbences 17

Yavorski v. U. 8., 1 F. 2d 169 (C. C. A. 3, 1924) ... 19

Unitep States ConsTITuTION.

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New Jersey STATUTES.

N. J. Comp. Stat. (1910), Vol. 2, p. 1881 .......... 8

N. J. Laws of 1906, p. 107, sec. 187 ............. 7,8

BA OE lg We Sos vi vin ccc cunnsewks 8

R. S. 2:103-1 (now N. J. S. 2A:85-1) .............. 2, 15

R. S. 2:103-6 (now N. J. S. 2A :85-7) ........... 3, 6, 15, 16

R. 8S. 2:199-1 (now N. J. S. 2A :168-1) ............ 8, 14

R. 8. 2:199-2 (now N. J. S. 2A:168-2) ............ 8,17

R. 8. 2:199-4 (now N. J. S. 2A:168-4) ........ 9, 16, 21, 23

IN THE

Supreme Court of the United States

Ocroser TERM, 1953.

AnTHoNy Apamo,

Petitioner,

vs.

Lioyp W. McCork tz, Acting Principal Keeper

of the New Jersey State Prison, at Trenton,

Respondent.

BRIEF OPPOSING PETITION FOR CERTIORARI.

I.

Reference to Official Report of Opinion Delivered

in the Court below.

The Supreme Court of New J ersey, the court immedi-

ately below, reversed the judgment of the Superior Court

of New Jersey, Appellate Division.

The opinion of the Supreme Court of New Jersey is

officially reported in 13 N. J. 561, 100 A. 2d 674 (R. 32).

The opinion of the Superior Court of New Jersey, Ap-

pellate Division, is officially reported in 26 N. J. Super. 562,

98 A. 2d 597 (R. 15).

Il.

Counter-statement Concerning Jurisdiction.

Counsel for petitioner states that the jurisdiction of

this Court is invoked under the due process clause of the

Fourteenth Amendment, and also under Title 28, U.S. C. A.,

See. 1257(e).

We respectfully submit that the decision of the Supreme

Court of New Jersey, reversing the judgment of the Su-

perior Court of New Jersey, Appellate Division, involving

the questions presented in the petition herein, is in con-

formity with the provisions of the United States Constitu-

tion respecting due process of law and double jeopardy('),

and it is submitted that the Supreme Court of New Jersey

did not decide any constitutional question of substance in

a manner contrary to the decisions of this Court.

We, therefore, respectfully submit that this Court should

not entertain jurisdiction to review the decision of the Court

below.

III.

Counter-statement of the Case.

On January 24, 1950, the petitioner, Anthony Adamo,

was tried and convicted by a judge and jury in the Bergen

County Court, New Jersey, upon two indictments for the

crime of assault.‘”

qa) Constitution of the United States, Amendment XIV, Sec. 1:

‘* * * nor shall any state deprive any person of life, liberty or

property without due process of law; * *

Constitution of the United States, pe ak V:

‘* * * nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; * * *”

(2) Under N. J. Rev. Stat. 1937, Title 2:103-1 (now N. J. S. 2A:85-1):

“Assaults, batteries, and all other offenses of an indictable na-

ture at common law, and not expressly provided for by statute,

shall be misdemeanors.”

3

The offense of assault was, at the time of its commis-

sion, a misdemeanor punishable by a fine not exceeding

$1,000 or by imprisonment for a term not exceeding three

years, or both.

On February 8, 1950, the court placed petitioner on

probation for five years, one of the conditions of the pro-

bation being the payment of a fine of $500.

Petitioner paid the $500 fine prior to May 16, 1952.

On May 16, 1952, he was charged with violation of pro-

bation; and after hearings, on August 13, 1952, he was

found guilty and his probation was revoked.

On August 20, 1952, the court imposed the following

sentence for violation of probation: two concurrent terms

of not less than two nor more than three years in State

Prison.

Thereafter petitioner applied for a writ of habeas

corpus to the Law Division of the Superior Court of New

Jersey, Bergen County, to test the validity of the County

Court’s sentence of August 20, 1952, claiming that the fine

of $500 formed part of the original sentence of February

8, 1950; that when the fine was paid the sentence was fully

executed and the power of the court to punish for the crime

was exhausted; that the order for probation was nugatory

(8) R. S. 2:103-6; now N. J. S. 2A:85-7.

(4) At the time of sentence the court said (R13a-20):

“It is the judgment of this court that this defendant be put on

probation for a period of five years. He is to report once a week

to the Probation Officer of this County, the time and place to be

fixed by the Probation Office. He is to obey all the rules of the

Probation Office which generally speaking means that he is to ob-

serve the law of this State, of the United States, and of any State

where he may be permitted to go. He is not to leave the State of

New Jersey, without the permission of either the Probation Officer

or the Judge of the Court. In addition to this he will be fined

$500.00 This fine may be paid in installments.”

4

and there was no legal basis for the prison sentence for

violation of probation.

The writ was granted, and after hearings and argu-

ments, the Superior Court, Law Division, on April 9, 1953,

discharged the writ of habeas corpus.

On appeal, the Appellate Division of the Superior

Court, reversed the judgment of the Law Division, it being

held ‘by the majority of the Court that, because the trial

court failed to expressly suspend the imposition of sen-

tence the order of probation was void; that the imposition

of the $500 fine formed part of the original sentence; that

payment of the fine constituted execution of the sentence;

and that the subsequent prison sentence was based upon

an invalid order of probation and was of no effect.

Thereafter, the State took an appeal, and upon cer-

tification granted, the New Jersey Supreme Court reversed

the Appellate Division, and it was held in a majority

opinion that the probation was necessarily predicated upon

an implied suspension of imposition of sentence; that a

formal expression of suspension of imposition of sentence

was not essential to the validity of the probation; that the

fine was only one of the conditions of the probation; that

payment of the fine did not constitute a complete satisfac-

tion of petitioner’s obligation to comply with the other

terms of the probation; and that the prison sentence for

violation of probation was a legal sentence.

Petitioner now petitions this Honorable Court for a writ

of certiorari to review the judgment of the Supreme Court

of New Jersey.

IV.

Summary of the Argument.

We respectfully submit:

First: The imposition of the fine did not form part of

the sentence, but it was one of the conditions of the pro-

bation; and payment of the fine did not constitute an execu-

tion of the sentence.

By placing the petitioner on probation, the trial court

impliedly suspended the imposition of sentence.

Seconp: The court’s action in imposing a sentence of

imprisonment for violation of probation was in accordance

with statutory authority and it did not constitute double

jeopardy or denial of due process of law.

Vv.

ARGUMENT.

POINT ONE.

The imposition of the fine did not form part of the

sentence, but it was one of the conditions of the pro-

bation; and payment of the fine did not constitute an

execution of the sentence.

By placing the petitioner on probation, the trial

court impliedly suspended the imposition of sentence.

Following petitioner’s conviction on two charges of

assault on January 24, 1950, the court could have imposed,

6

on each charge, a prison sentence of not more than 3 years,

or a fine not exceeding $1,000, or both (R. S. 2:103-6; now

N. J. S. 2A:85-7).

However, this was the pronouncement of the court at

the time of sentence on February 8, 1950.

**It is the judgment of this court that this defend-

ant be put on probation for a period of five years.

He is to report once a week to the Probation Officer

of this County, the time and place to be fixed by the

Probation Office. He is to obey all the rules of the

Probation Office which generally speaking means that

he is to observe the law of this State, of the United

States, and of any State where he may be permitted

to go. He is not to leave the State of New Jersey

without the permission of either the Probation Officer

or the Judge of the Court. In addition to this he will

be fined $500.00. This fine may be paid in install-

ments.”’

Petitioner paid the $500 fine prior to May 16, 1952.

On the latter date, May 16, 1952, he was charged with

violation of his probation, and after hearings on the charge,

he was found guilty and, on August 13, 1952, his probation

was revoked.

On August 20, 1952, the court sentenced him for the

violation of probation to a prison term of not less than 2

nor more than 3 years.

We cannot agree with petitioner’s contention that, (1)

the fine formed part of the sentence and payment of the fine

constituted an execution of the sentence; (2) the failure of

the court to expressly state that he was suspending the

7

imposition of a jail sentence rendered the probation invalid;

(3) the subsequent imposition of the prison sentence for

alleged violation of probation was illegal because it was

founded upon a void sentence of probation; and (4) the sub-

sequent prison sentence placed petitioner in double jeopardy

in violation of due process of law guaranteed by the Four-

teenth Amendment to the Federal Constitution.

A.

The fine was a condition of the probation and not a part

of the sentence for the offense.

In order to determine the question whether the fine

could properly be imposed as one of the conditions of pro-

bation or whether it was part of the sentence for the of-

fense, as well as the questions of whether the legality of

the probation depended upon an express declaration of

suspension of sentence, and whether the prison sentence

imposed for violation of the probation was a legal sen-

tence, it is important to examine the history and develop-

ment of the probation law of New Jersey.

Prior to 1906 New Jersey had no statute on probation.

At common law, the court could suspend either the im-

position or execution of a sentence. (State v. Addy, 43

N. J. L. 113, Sup. Ct., 1881; State v. Osborne, 79 N. J. Eq.

430, Ch., 1911; State v. Braunstein, 5 N. J. Mise. R. 243,

Sup. Ct., 1927). However, the court could not suspend a

part of any sentence. (State v. Addy, supra; State v. Clif-

ford, 84 N. J. L. 595, Sup. Ct., 1913).

It was not until 1906 that the first probation act was

adopted (Laws of 1906, p. 107, sec. 187, of Criminal Pro-

8

cedure Act, 2 Comp. Stat. 1910, p. 1881). That act did not

provide for imposition of a fine and probation.

By an amendment of 1907, it was provided that, ‘‘in-

stead of imposing the penalty provided by law for such

crime,’’ the court could order the defendant’s release on

probation upon specific conditions fixed by the court, and

one of the conditions the court could fix was ‘‘the payment

of a fine or costs of prosecution, or both.’’ It also pro-

vided that in the event of revocation of probation the court

could impose a sentence which could originally have been

imposed for the offense. (Laws of 1907, c. 209).

This was the law which was in effect at the time of the

sentence in the instant case (February 8, 1950), the pro-

visions of the 1906 and 1907 acts being carried over into

the Revised Statutes, 1937, Title 2:199-1, 2 and 4.

Substantially the same provisions are now contained in

the present Probation Law under N. J. S. 2A:168-1, 2 and 4

(effective January 1, 1952).

Under R. S. 2:199-1 (now 2A:168-1), the court may

‘*suspend the imposition or execution of sentence, and also

to place the defendant on probation for a period of not

less than 1 year nor more than 5 years * * *’’ (Italics

ours), and this power of probation may be exercised

‘‘When it shall appear that the best interests of the public

as well as of the defendant will be subserved thereby.”’

Under R. S. 2:199-2 (now 2A:168-2), the court ‘‘shall

determine and may, at any time, modify the conditions of

probation, and may, among others, include any of the fol-

lowing * * * a fine or the costs of the prosecution, or both,

in one or several sums; * * *.’’ (Italics ours).

9

Under R. S. 2:199-4 (now 2A 7168-4), in the event of

the violation of the terms of probation, the court may

revoke the probation and suspension of sentence, ‘‘and

may cause the sentence imposed to be executed or impose

any sentence which might originally have been imposed.”’

(Italics ours).

Thus, from the above sections of the probation law in

New Jersey at the time of the sentence the court had the

statutory authority to do the following things: (1) to sus-

pend the imposition of sentence and place the defendant

on probation (Sec. 1); (2) to include a fine as one of the

conditions of the probation (Sec. 2); and (3) in the event

of violation of probation to revoke the probation and sus-

pension of sentence and impose a sentence which could

originally have been imposed (Sec. 4).

In order not to contravene the rule established in State

v. Addy, supra, that the court could not suspend a part of

the sentence, the Legislature made it possible for the court

to suspend the imposition of sentence and impose a fine,

not as part of the sentence for the offense, but as a condi-

tion of probation.

The New Jersey statute differs from the Federal Pro-

bation Act (Criminal Procedure, 18 U. S. C. A., sec. 3651)

in that, while the Federal Act contains a specific provision

that, where ‘‘an offense is punishable by both fine and

imprisonment, the court may impose a fine and place the

defendant on probation as to imprisonment,’’ the New Jer-

sey statute does not contain such a provision.

While it has been held in the Federal courts that under

the Federal] statute a fine may be imposed either as a pun-

10

ishment or as one of the conditions of probation (Mitchem

v. U. S., 193 F. 2d 55, 5 Cir. 1951; Hollandsworth v. U. 8.,

34 F. 2d 423, 4 Cir. 1929), in New Jersey the rule in State

v. Addy, supra, has been modified by statute to the extent

that the imposition of a fine may be made a condition of

the probation.

In the instant case, the respondent takes the position

that a reading of the pronouncement of the court clearly

indicates that it was the predominant intent of the court

to place the defendant on probation, and to make payment

of the fine one of the conditions of the probation.

If the court intended that the fine should form part of

the sentence, it would have been very simple for the Court

to commence his sentence by stating that he was imposing

a fine of $500. But this the court did not do.

Instead, the court’s first statement was that, ‘‘It is the

judgment of this court that this defendant be put on pro-

bation for a period of five years.’’

It then proceeded to prescribe the terms and conditions

of the probation; such as fixing the time and place for

defendant’s reporting to the probation office; admonishing

the defendant to observe the laws of New Jersey, the

United States or any State to which the defendant would

be permitted to go; and that he should not leave the juris-

diction without the permission of the probation office.

Then, without any apparent pause or break in the fixing

of the conditions, the court added, ‘‘In addition to this he

will be fined $500.00,’’ and it permitted the fine to be paid

in installments of $10 per month covering almost the entire

five-year period of probation.

11

Could there be any possible question that the fine was

an additional condition of the probation, and that it did

not form any part of the sentence which could be imposed

for the offense, particularly when the broad scope and

remedial purposes of the probation law, as herein outlined,

is taken into consideration?

We submit the court below properly construed the im-

position of the fine as one of the conditions of the proba-

tion and not as part of the sentence for the offense, and

that payment of the fine did not alter or terminate the

petitioner’s obligation to comply with all the other terms

of probation.

There was an implied suspension of imposition of sentence

and the judgment of probation was legal.

The trial court omitted to precede the judgment of

probation with an express declaration that imposition of

sentence was being suspended.

The respondent takes the position that an express state-

ment that the sentence was being suspended was not es-

sential to the legal efficacy of the probation, and that the

judgment of probation without such express declaration

necessarily implied that the court was suspending the im-

position of sentence.

It has been established by this Court that an order

placing the defendant on probation without first formally

sentencing him is a final judgment for purposes of appeal.

(Korematsu v. U. S., 319 U.S. 432, 63 S. Ct. 1124, 87 L. Ed.

1947, 1949; Berman v. U. §., 302 U. 8. 211, 58 S. Ct. 164, 82

L, Ed. 204, 1937).

12

In the Korematsu case, supra, it is stated (p. 435 of

319 U.S.):

‘‘The difference to the probationer between im-

position of sentence followed by probation, as in the

Berman Case, and suspension of the imposition of

sentence, as in the instant case, is one of trifling de-

gree. Probation, like parole, ‘is intended to be a

means of restoring offenders who are good social

risks to society; to afford the unfortunate another

opportunity by clemency,’ Zerbst v. Kidwell, 304 U.

S. 359, 363, 82 L. Ed. 1399, 1400, 58 S. Ct. 872, 116

A. L. BR. 808, and this end is served in the same

‘fashion whether or not probation is preceded by im-

position of sentence. In either case, the liberty of an

individual judicially determined to have committed

an offense is abridged in the public interest. ‘In

criminal cases, as well as civil, the judgment is final

for the purpose of appeal when it terminates the

litigation * * * on the merits’ and ‘leaves nothing to

be done but to enforce by execution what has been

determined.’ ’’ (Citing and quoting from Berman v.

U. S., supra).

In the instant case, at the time of sentence, the court

immediately announced, ‘‘It is the judgment of this court

that this defendant be put on probation for a period of

five years.”’

Can it be said that a formal statement of suspension of

imposition of sentence was indispensable to the legality of

the probation, in view of the remedial purposes of the pro-

bation law hereinbefore outlined under Subdivision A?

Could there be any other meaning to the omission of a

formal expression than that it must be necessarily implied?

13

We submit that the only answer to these questions is

hat expressed by the New Jersey Supreme Court in its:

pinion (p. 567 of 13 N. J.):

‘«* * * The use of formal language of suspension

was not indispensable since the judgment that the

defendant ‘be put on probation for a period of five

years’ necessarily meant that the imposition of sen-

tence was being suspended.’’

We submit that the following language of the dissent in

the instant case in the Appellate Division (approved by the

Supreme Court) is appropriate, p. 573 of 26 N. J. Super.:

‘*T do not believe it to be essential to the legal

propriety of a probation order that the court employ

some such words as; ‘The imposition of sentence is

suspended and you are placed on probation for

years’: or, as: ‘You are sentenced to one to three

years in New Jersey State Prison; the execution of

this sentence is suspended and you are placed on

probation for years.’ Where the only possible

conclusion to be drawn from the order for probation

is that the imposition of sentence is suspended, the

order should be unobjectionable legally. Here where

the form permits but one inference as to the nature

of the action taken it would be mere obeisance to

words to require the use of the expression, ‘Imposi-

tion of sentence is suspended,’ when the grant of

probation is made. Manifestly an order granting

probation without more in effect suspends the imposi-

tion of sentence.”’

Further in the same dissenting opinion it is stated

significantly, p. 574:

‘*Defects in efforts of administration, which are

purely formal in nature, ought not to stand in the

14

way of its use. While it is true that a defendant

should be made aware of the nature of his sentence,

it is unrealistic to hold that when probation is

granted following conviction of crime, the offender

does not know that the imposition of an imprisonment

sentence is being suspended, unless such an express

statement is made.’’ (Citing and quoting from State

v. Pascal, 133 N, J. L. 528, N. J. Sup. Ct., 1946).

In Commonwealth v. Smith, 130 Pa. Super. 536, 198 A.

812, 814, where a statute substantially similar to that of

New Jersey was involved and defendant was placed on

probation following a burglary conviction, the court, in

passing upon the legality of the order of probation in con-

nection with the Pennsylvania Probation Act, stated signi-

ficantly, p. 814 of 198 A.:

‘** * * They are not in the alternative or disjunc-

tive, but in the conjunctive; and, whether a specific

order suspending the imposing of a sentence is made

or not, the placing of defendant on probation is, in

effect, a suspension of the imposing of sentence.’’

(Italics ours).

The New Jersey statute (R. S. 2:199-1; now 2A :168-1)

also provides that the court may ‘‘suspend the imposition

* * * of sentence, and also to place the defendant on proba-

tion.’? The suspension of the imposition of sentence and

the placing on probation are not in the alternative or dis-

junctive, but in the conjunctive.

Under the circumstances, when the court, at the very

inception of the sentence, places the defendant on probation

without uttering a specific expression that it is suspending

the imposition of a sentence permissible for commission of

BT Re eee eas Rd ee RRS ag

15

the crime, there can be no other meaning to the action than

that the imposition of sentence is being impliedly sus-

pended.

It is significant to note, too, that in the instant case

neither the defendant nur his counsel made any protest

against the sentence at the time it was imposed, and it was

not until August 20, 1952, when the sentence for violation

of probation was imposed, more than three months after

he was charged with violation of probation and long after

payment of the fine was attached as a condition of the pro-

bation, that any complaint was made against the legality

of the sentence.

POINT TWO.

The court’s action in imposing a sentence of im-

prisonment for violation of probation was in accord-

ance with statutory authority and it did not constitute

double jeopardy or denial of due process of law.

On February 8, 1950, the time of sentence, the court,

under the pertinent statute (R. S. 2:103-1 and 6; now

2A :85-1 and 7), could have imposed a sentence of imprison-

ment not exceeding three years, or a fine not exceeding

$1,000, or both.

But the court saw fit not to impose any sentence for the

offense, and it placed petitioner on probation for five years,

one of the conditions being the payment of a fine of $500, to

be paid in installments.

In effect, the court suspended, or ‘*postponed’’, the im-

position of a sentence for the offense.

16

Petitioner paid the fine prior to May 16, 1952, and on the

latter date he was charged with violation of probation in

connection with the other terms and conditions of proba-

tion; on August 13, 1952, the probation was revoked; and

on August 20, 1952, he was sentenced for violation of pro-

bation to two concurrent terms of two to three years in

prison.

Under R. 8. 2:199-4 (now 2A:168-4), it was provided

that upon violation of probation, the court, after hearing,

could revoke the probation and ‘‘cause the sentence to be

executed or impose any sentence which might originally

have been imposed.”’

The first part of the above provision applies where

sentence has been imposed but its execution suspended;

while the latter portion applies where no sentence has been

imposed and the imposition of sentence has been sus-

pended, in which case the court was empowered to impose

a sentence for the offense which it might originally have

imposed.

We submit the instant case falls within the latter cate-

gory, and that it was completely within the court’s function,

upon revocation of probation, to impose the sentence it did,

from two to three years in prison. The sentence was within

the limitations imposed by the statute, R. S. 2:103-6.

We cannot agree that the sentence imposed upon revo-

cation of probation constituted double jeopardy, first, be-

cause the fine of $500 was imposed as one of the conditions

of probation, as we have pointed out under Point I; and

secondly, there never had been any sentence imposed for

the offense.

17

While we do not disagree with the principles in cases

cited by petitioner in his Brief, they cannot be made to

apply here.

In Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872 (1874),

cited (B. p. 13) and quoted from (B. pp. 16-17), the perti-

nent statute provided for a jail sentence or fine, and the

court imposed a jail sentence of one year’s imprisonment

and a fine of $200. The defendant was immediately con-

fined, and the following day he paid the fine. Five days

later, the court vacated the original sentence imposed for

the crime and imposed a new sentence of one year’s im-

prisonment to begin on the latter date. The original sen-

tence was clearly invalid by having punishment imposed

for both jail and fine when the court could rightfully im-

pose but one or the other; and the fact that the second

sentence was made to begin after the defendant had al-

ready served five days of the first sentence constituted

double punishment for the same offense.

That is not the situation here. The court did not im-

pose any original sentence of either fine or imprisonment,

but it placed petitioner on probation. The imposition of

sentence for the offense was in effect suspended, and peti-

tioner was placed on probation for five years, one of the

conditions of the probation being payment of a fine of $500,

which the court could do under the statute (R. 8. 2:199-2).

In U. S. v. Murray, 275 U. S. 347, 48 S. Ct. 146, 72 L.

Ed. 309 (1928), cited (B. p. 13), defendant was sentenced

to jail for 3 months, and the following day, after he started

to serve the jail sentence, he was recalled and placed on

18

probation. The probation sentence was heid illegal be-

cause, under the pertinent statute, the judgment of proba-

tion should immediately follow any suspension of imposi-

tion or execution of sentence, ‘‘without any interval of

any part of the execution,’’ and a probation sentence could

not be imposed after the jail sentence has begun to be

served.

In Frankel v. U. S. 131 F. 2d 756 (C. C. A. 6, 1942)

(B. p. 13), defendant was sentenced to pay a fine of $1,500

within 30 days. Before expiration of the 30 days defend-

ant informed the court it was impossible for him to pay it,

whereupon the court, before the expiration of tiie 30-day

period, imposed a new sentence of 214 years in prison.

After spending 3 days in prison, also before expiration of

the 30 days, defendant offered to pay the fine, which was

refused. It was held that the revocation of the fine and

imposition of a new prison sentence was erroneous; that

the imposition of the fine in the original sentence was a

valid sentence; that punishment thereunder had in some

respects been suffered; and the court was thereafter pre-

cluded from further increasing the original sentence.

In Santos v. Esola, 50 F. 2d 516 (C. C. A. 9, 1931),

cited (B. p. 13), defendant was fined $100, sentenced to

jail in default thereof, and upon payment of the fine to

be placed on probation for 6 months. Defendant paid the

fine but failed to comply with other terms of probation.

The probation was revoked and he was again fined $500

with credit for the $100 paid on the first fine, and in de-

fault to be confined until payment of the balance of $400.

19

It was held that the fine of $100 was the original sentence

and payment of the fine was a complete execution of the

sentence.

In Yavorski v. U. S., 1 F. 2d 169 (C. C. A. 3, 1924),

cited (B. p. 13), defendant was sentenced to a fine and

imprisonment of 60 days. After serving 5 days of the

jail sentence, he was recalled when the court realized it

could not impose both fine and jail sentence. The court

ordered remission of the fine to defendant, who had paid

it when the sentence was imposed, but the defendant re-

fused to accept it and challenged the legality of the sen-

tence. It was held that the court could not remit the fine

after the punishment imposed had been suffered.

In Roberts v. U. S., 320 U. S. 264, 88 L. Ed. 41 (1943),

cited (B. p. 14), defendant was sentenced to pay a fine of

$250 and imprisonment for 2 years. Execution of the

prison sentence was suspended upon condition that he pay

the fine, and in addition he was placed on probation for

5 years. Defendant paid the fine and was released from

custody. More than 4 years later, the probation was re-

voked; the original 2-year prison sentence was set aside,

and a new sentence of 3 years’ imprisonment imposed.

One of the grounds of attack upon the legality of the sec-

ond sentence was that it violated the Fifth Amendment

respecting double jeopardy. As to this claim, the Court

said, ‘‘We do not reach this second conclusion,’’ following

the principle that the Amendment guarded against prose-

cuting a person twice in a new and independent case when

he already had been tried once (Kepner v. U. S., 195 U.S.

100, 134, 49 L. Ed. 114, 126, 24 S. Ct. 797), or punishing a

man for an offense when he already suffered the punish-

20

ment for it. However, it was held that, although a court

is authorized by the Federal Probation Act to ‘‘suspend

the * * * execution of sentence and to place the defendant

upon probation * * *’’, the statute does not give it the

power to set aside the original sentence and to substitute

for it another sentence of increased severity.

That was a case involving the suspension of the execu-

tion of a sentence imposed, and under such circumstances,

after revocation of probation, the case reverts to its status

at the time the original sentence was imposed, and the

court is powerless to impose any greater punishment than

that originally inflicted.

In Comm. v. Hottle, 189 Pa. Super. 128, 11 A. 2d 524

(Pa. Super. Ct., 1940), cited (B. p. 14), the defendant was

on September 16, 1937, sentenced to pay a fine of $50 and

costs, and placed on probation until the fine was paid. On

September 17 and 18, he paid the fine. On November 23,

1937, the court revoked the sentence of September 16 and

directed that defendant be brought before it for further

sentence. Defendant was apprehended almost two years

later, and he attacked the validity of the order of Novem-

ber 23, 1937. He was sentenced on September 28, 1939, to

pay a fine of $1,000 and to a prison term of nine months

from the latter sentence. The pertinent statute provided

for fine and imprisonment, and it was held that the sen-

tence was irrevocable as respects the fine, but not as re-

spects the addition of imprisonment.

In the instant case, there was no sentence imposed for

the crime, but petitioner was placed on probation with a

fine of $500 attached as one of the conditions of probation.

Upon violation of probation the case reverted to its status

21

at the time of granting of probation and, under the

authority of R. S. 2:199-4, the court was clearly free to

impose ‘‘any sentence which might originally have been im-

posed.”

The following New Jersey cases cited by petitioner

(B. pp. 15-16) deal with the forbidding of ‘‘repeated prose-

cutions’’ for the same offense, and they have no application

here involving the legality of sentence.

In State v. Labato, 7 N. J. 137, 80 A. 2d 617 (S. C.,

1951), the defendant was first tried and convicted of un-

lawful possession of lottery slips in the Municipal Court

under the Disorderly Persons Act and he was subsequently

indicted for the same offense under the Crimes Act. De-

fendant’s plea of double jeopardy was sustained, it being

held that the true test of double jeopardy is whether the

evidence necessary to sustain the second prosecution on

indictment would have been sufficient to secure a legal con-

viction on the first prosecution by complaint.

In State v. DiGiosia, 3 N. J. 413, 70 A. 2d 756 (S. C.,

1950), defendant was tried and acquitted of carnal abuse

allegedly committed on a certain day named in the indict-

ment. At the trial, the State was allowed to prove other

like offenses not barred by the statute of limitations, and

the jury were instructed to convict if they found that de-

fendant had committed any of such other offenses. It was

held that an acquittal on the charge laid in the indictment

constituted a bar to a second prosecution for any of the

specific offenses committed within that period.

State v. Mowser, 92 N. J. L. 474, 106 A. 416 (E. & A.,

1919), held that, where the defendant was charged, in sep-

arate indictments, with robbery and murder, the murder

22

being the result of the criminal act of the accused done in

perpetration of the robbery, the subsequent prosecution on

the indictment for murder was barred, upon the principle

that an acquittal or conviction for a lesser offense will bar

a prosecution for the greater.

In State v. Cooper, 13 N. J. L. 361 (Sup. Ct., 1833),

defendant was first tried and convicted of arson, and it

was held that the conviction barred further prosecution

for murder where the murder resulted from the commis-

sion of arson.

In the instant case, the petitioner was not being prose-

cuted a second time for the offense; nor was he being sub-

jected to further punishment for said offense.

The only question was whether the sentence of 2% to 3

years in State Prison could properly be imposed for viola-

tion of probation, and whether the sentence was a legal one.

As we have hereinbefore ‘pointed out, the prison sen-

tence was for violation of probation, and it was not ‘‘in

addition to the fine of $500,’’ which was but one of the con-

ditions of probation.

The legality of the prison sentence for violation of pro-

bation must be upheld in view of the basic purpose of pro-

bation, which this Court has clearly described in Roberts

v. U. S., supra, as follows:

‘*to provide an individualized program offering a

young unhardened offender an opportunity to re-

habilitate himself without institutional confinement

under the tutelage of a probation official and under

the continued power of the court to impose institu-

tional punishment for his original offense in the

event that he abuse this opportunity.’’

23

When the petitioner was first brought before the court

for sentence on February 8, 1950, the court in effect sus-

pended the imposition of any sentence and immediately

placed petitioner on probation; and the court specifically

imposed the fine of $500 as one of the conditions of the

probation, and the fine did not form any part of the orig-

inal sentence which had been suspended.

The prison sentence imposed on August 20, 1952 was for

violation of probation, which the court was empowered to

do by virtue of statutory authority (R. S. 2:199-4).

We, therefore, respectfully submit that there is no merit

to petitioner’s contention that he was denied the safeguard

against double jeopardy under the Fifth Amendment, or

that he was denied due process of law guaranteed by the

Fourteenth Amendment.

Vi.

Conclusion.

For the reasons herein set forth, we respectfully submit

that the writ of certiorari should be denied.

Respectfully submitted,

Grover C. RicHMaAN, JR.,

Attorney General of New Jersey,

Harotp Ko.ovsk1,

Deputy Attorney General of New Jersey,

Bergen County Court House,

Hackensack, New Jersey.

C. Witiiam Caruso,

Deputy Attorney General of New Jersey,

Of Counsel, On the Brief.