Persistent Offender Statute and Prior Crimes Dates (Part 4)

The parties dispute whether this circumstance resulted in a “confinement” within the meaning of N.J.S.A. 2C:44-3(a), and whether that circumstance justifies the sentencing judge’s imposition of an extended term. We choose not to consider this alleged circumstance or how it might be viewed when considering the application of N.J.S.A. 2C:44-3(a). These facts were not presented to the sentencing judge, they have not been adequately developed for anyone’s consideration, and even, as of now, remain uncertain. We will not speculate on the significance of these undeveloped circumstances. We instead leave these matters for further development and consideration, if necessary, in the trial court.

For further guidance, we make the following observations. Probation can be violated either by a conviction for a subsequent offense or for failure to adhere to a substantial requirement imposed as a condition of the probation; moreover, the subsequent consequences of violating probation are considered part of the corrections process, not a separate prosecution and conviction. See N.J.S.A. 2C:43-7. We are satisfied that the persistent-offender statute applies to confinement for criminal behavior, not the mere incident of an individual being held briefly in custody. Consequently, if the State persists in seeking an extended term, the judge should be provided with evidence as to the cause for defendant’s detention in 2006 and whether its consideration as “confinement” comports with the underlying purpose of N.J.S.A. 2C:44-3(a).

Reversed and remanded for proceedings in conformity with this opinion. We do not retain jurisdiction.

By not retaining jurisdiction, the Appellate Division creates significant work for either party that wishes to appeal a subsequent decision of the trial court. If jurisdiction was retained, the trial court opinion could be appealed by filling out a several page form and electronically filing for appeal. By not retaining jurisdiction, a party wishing to appeal must seek leave to appeal from the trial court and/or must provided a new appellate panel with merits briefs adhering to specific and onerous court rules.