Judge Alvarez continued in relevant part: Here, the situation differs insofar as defendant will be sentenced a third time for reasons unrelated to the adoption of the statute. But the result is unchanged. The judge will be viewing defendant “as she stands before the court on that day.” He should apply the new law because it was enacted before she incurred the penalty. Thus, it is prospective application of the new statute, not retrospective.
In State v. Parks (2007), a defendant initially sentenced in January 2002 under the Three Strikes Law was resentenced in 2004, after we said “the trial judge had failed to make the required determination that defendant’s prior federal bank robbery conviction constituted a ‘strike’ within the meaning of the Three Strikes law.” By 2004, the Legislature had amended the applicable Three Strikes Law to clarify its applicability to defendants convicted of three crimes committed on three separate occasions, regardless of the dates of prior convictions.
The New Jersey Supreme Court held: The remaining question is whether there is any reason to apply the original version of the Three Strikes Law. None has been demonstrated. To be sure, when defendant was sentenced in January of 2002, the first Three Strikes Law was in effect. However, when he was sentenced anew on April 29, 2004, the prior sentencing was nullified. At that time, the amended law was in effect. Thus, the parties’ briefs and arguments on questions of retroactivity and the concomitant effect of the Savings Clause (N.J.S.A. 1:1-15) were wide of the mark. Plainly, this case does not involve a retroactivity analysis because no penalty was incurred prior to the amendment. Indeed, when defendant’s resentencing took place, the new law had been in effect for a year. The Court’s holding means that a lower court’s error on an issue unrelated to a new sentencing statute can be the basis for a different result at a re-sentencing. Fundamental fairness would seem to weigh against a harsher sentence under those circumstances. This is because jeopardy would have attached at the first sentencing but for an unrelated error that undermined the defendant’s rights. If an error undermined the defendant’s rights, the defendant should receive a benefit, or at least the same result at the re-sentencing.