Judge Fisher continued: Remaining crime free during the preceding ten years – even when serving a probationary term during part or all of that ten years – demonstrates that individual’s ability to lead the ten-year crime-free life anticipated by our Legislature when enacting N.J.S.A. 2C:44-3(a). Persistent-offender statutes serve to deter individuals with criminal histories from further criminal behavior by giving notice that they may be subject to extended prison terms for subsequent crimes. Although nearly all states have such laws, there are few similar to ours. Wisconsin utilizes the phrase “actual confinement” and defines that phrase as connoting a time when an individual is “off the streets and no longer able to wreak further criminal havoc against the community.” State v. Price, 604 N.W.2d 898, 901 (Wis. Ct. App. 1999). That notion comports with our view of our own persistent-offender statute. An individual serving a probationary term is not “off the streets” and, thus, should be entitled to take advantage of the time that passes while on probation prior to the crime for which he or she is later charged. In short, we reject the State’s argument and the sentencing judge’s interpretation; we hold that an individual serving a probationary term cannot be considered to be confined within the meaning of N.J.S.A. 2C:44-3(a).
Were that all that was before us, we would simply reverse and remand for resentencing without application of N.J.S.A. 2C:44-3(a). We are further mindful, however, of facts suggested to us by the parties since the appeal was filed that may impact on the analysis set forth in Section II above.
That is, the State has argued and provided some evidence to us to suggest defendant was briefly detained in Florida in 2006 for allegedly violating a condition of his probationary term. We do not know the nature of the violation. And it appears that whatever occurred resulted in the continuation of defendant’s probationary term.
The holding that “an individual serving a probationary term cannot be considered to be confined within the meaning of N.J.S.A. 2C:44-3(a)” begs the question of how to treat confinement due to an alleged violation of probation or an adjudicated violation of probation. As a practical matter, the application of an extended term means exposure to many additional years in prison. Such an extreme sanction should not turn on several discretionary days in jai spent waiting for the adjudication of an alleged violation of probation.
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