The 1999 amendment to N.J.S.A. 2C:35-14 undermines the State’s position that N.J.S.A. 2C:44-1(f)(2) permits the State to appeal a special probation Drug Court sentence. If N.J.S.A. 2C:44-1(f)(2) already authorized the State to appeal special probation Drug Court sentences for defendants otherwise subject to the presumption of incarceration, it was wholly unnecessary to amend N.J.S.A. 2C:35-14 to authorize a State’s appeal of special probation sentences for convictions otherwise subject to the presumption of imprisonment.
We presume the Legislature was familiar with the parameters of its grant of authority to the State to appeal sentences under N.J.S.A. 2C:44-1(f)(2). Indeed, the 1999 amendment makes express reference to the N.J.S.A. 2C:44-1(d)presumption of incarceration.
This is a presumption that courts routinely cite to regarding statutory interpretation. The Legislature’s lack of precise statutory language calls this presumption into question. A case in point is the wording regarding firearms in drug court admission factor (5).
We also cannot read the 1999 amendment in a manner rendering meaningless its grant of authority to the State to appeal special probation sentences for defendants otherwise subject to the presumption of incarceration. The 1999 amendment to N.J.S.A. 2C:35-14 was not meaningless. The amendment included a grant of authority for the State to appeal special probation Drug Court sentences that did not, and does not, exist under N.J.S.A. 2C:44-1(f)(2).
Nevertheless, N.J.S.A. 2C:35-14 does not authorize the State’s appeal of special probation Drug Court sentences. In 2012, the Legislature repealed N.J.S.A. 2C:35-14(c) and removed from the statute any grant of authority to the State to appeal a Drug Court sentence. Following the 2012 amendment, N.J.S.A. 2C:35-14 no longer authorizes under any circumstances the State to appeal a special probation Drug Court sentence.
This is very powerful language to use in pursuing a drug court rejection appeal. It comes from published authority. It will be interesting to see if the state appeals the issues to the New Jersey Supreme Court. Alternatively, they will likely fall back on an “illegal sentence” argument in future cases.
We interpret the repeal of N.J.S.A. 2C:35-14 as an unequivocal expression of the Legislature’s intent to deprive the State of statutory authority to appeal special probation Drug Court sentences. In the absence of any express statutory authority under allowing the State’s appeal, or a showing defendant’s sentence is illegal, we are convinced we have no jurisdiction to consider the State’s challenge to defendant’s special probation Drug Court sentence.
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