STATE OF NEW JERSEY v. FREDERICK W. STILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5432-04T2F5432-04T2F

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

FREDERICK W. STILL,

Defendant-Respondent.

________________________________________________________________

 

Submitted December 6, 2005 - Decided

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of

New Jersey, Law Division, Camden

County, Indictment No. 9-2005.

Vincent P. Sarubbi, Camden County

Prosecutor, attorney for appellant

(Leo Feldman, Assistant Prosecutor,

of counsel and on the brief).

Respondent, Frederick W. Still,

submitted no brief.

PER CURIAM

Defendant pled guilty in Gloucester Township Municipal Court to unsafe driving, N.J.S.A. 39:4-97.2, and then appealed his conviction to the Law Division. The Law Division, upon de novo review, concluded that the procedure utilized by the municipal court to accept defendant's guilty plea violated R. 7:6-2(a)(1). Instead of vacating the plea and returning the matter to municipal court, however, the judge found defendant "not guilty." The State appeals and we reverse and remand.

We do not disagree with the Law Division judge's determination that the manner in which the Gloucester Municipal Court dealt with defendant's guilty plea was woefully inadequate. See R. 7:6-2(a)(1). The municipal court judge never administered an oath to defendant and never addressed defendant personally. The plea transcript does not establish a factual basis or that defendant plead guilty voluntarily, with an understanding of the nature of the charge, and the consequence of the plea. Ibid.

Our problem is with the remedy chosen by the Law Division. The court found defendant's guilty plea to be "void." Without giving the State an opportunity to address the appropriate remedy, the Law Division judge found defendant "not guilty." Under the circumstances, the acquittal was unnecessary and erroneous.

The proper remedy is to vacate the guilty plea and return this matter to Gloucester Municipal Court for defendant to decide whether he wishes to plead guilty again or proceed to trial. See State v. Paladino, 203 N.J. Super. 537, 549-50 (App. Div. 1985); State v. Owczarski, 236 N.J. Super. 52, 58 (Law Div. 1989). If defendant intends to plead guilty, the Municipal Court shall comply with R. 7:6-2(a)1.

 
Reversed and remanded to the Law Division for entry of an order directing further proceedings, in accordance with this decision, in the municipal court.

We agree with the State that in this case double jeopardy protection would attach only if "'the ruling of the [Law Division], whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.'" State v. Widmaier, 157 N.J. 475, 490 (1999) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354-55, 51 L. Ed. 2d 642, 651 (1977)). Because the Law Division's ruling was based on a procedural deficiency, the State's appeal would not violate double jeopardy. See also State v. Golotta, 354 N.J. Super. 477, 484 (App. Div. 2002), rev'd on other grounds, 178 N.J. 205 (2003).

(continued)

(continued)

3

A-5432-04T2F

December 20, 2005