Jail Credits-Department of Corrections Failure to Lodge Detainer for Out-of-Court Sentence for New Jersey Sentence

Prepared as a Public Service by the Law Office of Vincent J. Sanzone, Jr., Esq.

The New Jersey Department of Corrections routinely decides that all out-of-court sentences that are being served out-of-state must run consecutive unless ordered otherwise by the courts.

Accordingly, when a defendant is release from custody from an out of state sentence the defendant will be brought back to New Jersey to start or continue serving his New Jersey sentence.

However, the law in New Jersey is to the contrary.  In New Jersey it is not the New Jersey Department of Corrections (DOC) that can make that decision but the New Jersey Superior Court which can only determine whether out of state sentence is to run concurrent or consecutive to a New Jersey Sentence.

In a recent case a defendant was released by the Department of Corrections of Pennsylvania and was free for six months.  After six months the defendant was picked up on a warrant in which he was brought back to New Jersey to continue his New Jersey sentence in which he escaped.

The defendant brought a motion to compel the DOC to give him credit for the six months in which he was free because the DOC failed to properly lodge a detainer while the defendant was in custody in Pennsylvania.  In the alternative the defendant requesting that his entire Pennsylvania sentence run concurrent to his New Jersey sentences.  The Superior Court in Union County ruled that the defendant was entitled to the six months that the defendant was free since New Jersey filed to properly lodge the detainer while the defendant was in custody in Pennsylvania.

The controlling case with his issue is Breeden v. New Jersey Department of Corrections, 132 N.J. 457 (1993), which held that issues of comity between states as to whether sentences should run concurrent or consecutive must be decided by the original New Jersey sentencing court.  Breeden v. New Jersey, 132 N.J. at 459.  Further, the time limits set forth in R. 3:21-10 do not apply for the relief the Defendant seeks. Breeden v. New Jersey, 132 N.J. at 470; See, Pressler & Verniero, 2014 N.J. Court Rules, Comment 3:21-10(2.5).  As the court in Breeden held under no circumstances shall the New Jersey Department of Corrections (“DOC”) decide whether a sentence is concurrent or consecutive. Breeden v. New Jersey, 132 N.J. at 469

The defendant argued in his motion that the defendant is entitled to jail credit for the time served under the Pennsylvania sentence under the general principals of comity.  Further, the sentence in Pennsylvania served the penal interest of New Jersey.

In Clark v. Floyd, 80 F.3d 371 (9^th Cir. 1996), the Ninth Circuit Court of Appeals held on an appeal from a denial of the defendant’s writ of habeas corpus that the defendant was entitled to jail credit from the time that the defendant was at

large after being erroneously released by state officials after his completion of his sentence.  This rational has been followed in the Third Circuit in Vega v. United States, 493 F.3d 310 (3^rd. Cir. 2006). 

Tip of the Day:  In the plea agreement write, concurrent and coterminous.  Coterminous is defined as "coextensive in time or meaning."  Black's Law Dictionary 374 (8th Ed. 2004).  Sentences that have been ordered to be served coterminously have been understood to "coterminate" or end at the same time as the previously imposed sentence.  See Joiner v. State, 625 So.2d 1173 (Ala. Crim. App. 1993)

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