The Appellate Division continued in relevant part: This brings us to the second faulty premise on which defendant’s constitutional argument relies. We reject the notion that time spent in the community on non-custodial special probation is functionally equivalent to time spent incarcerated. See Hawkins, __ N.J. Super. at __ (slip op. at 11) (“We do not accept that a year of probation is equal to a year of incarceration, or that eight years in prison plus five years of probation is greater than ten years in prison”). Non-custodial probation is qualitatively different from incarceration, as authoritative precedents clearly establish.
In State v. Evers, for example, we concluded that “probation is not the same as incarceration,” and therefore the “defendant was not entitled to credit for time served on probation because his probation was not as restrictive and confining as a custodial sentence.” (App. Div. 2004); see also United States v. Gordon, 961 F.2d 426, 432-33 (3d Cir. 1992) (“Probation time cannot be converted into prison time with any mathematical precision.”); Clarity, (holding probation was not confinement for purposes of determining, under the persistent offender statute, N.J.S.A. 2C:44-3(a), whether the defendant had been released from confinement within ten years preceding the instant offense).
We see no reason to retreat from these precedents and hold for the first time that a day serving non-custodial special probation while undergoing outpatient treatment is equivalent punishment to a day of incarceration. In this instance, the Legislature has explicitly set forth when and to what extent a defendant is entitled to credit against a prison sentence imposed following revocation of special probation. N.J.S.A. 2C:35-14(f)(4) provides in pertinent part: If the court determines or is required pursuant to any other provision of this chapter or any other law to impose a term of imprisonment, the person shall receive credit for any time served in custody pursuant to N.J.S.A. 2C:45-1 or while awaiting placement in a treatment facility pursuant to [N.J.S.A. 2C:35-14], and for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to [N.J.S.A. 2C:35-14] to a residential treatment facility.[(Emphases added).]
The Clarity case was an example of hoe not treating time served on probation as equivalent to time served in custody. If it were the defendant in that case would have been extended term eligible and faced many more years in prison.
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