DWI Appeal of the Day (DAD) - Sentence Increase in Law Postarrest is OK

In State of New Jersey v. Cordero, Not Reported in A.3d, 2011 WL 847029 (N.J.Super.A.D.), the defendant was arrested in 2005, when the maximum or his DWI was up to 90 days jail. However, due to a stay of proceedings in all NJ cases involving the Alcotest litigation, he was not convicted until 2009. By then, the law for his classification of offense had increased to a minimum of 180 days. The judge gave the defendant the increased sentence. On appeal, the defendant claimed that he should have been sentenced in accord with the less severe version of the law that was in effect when he committed the offense.

The appeals court disagreed:

A defendant has no vested right to be sentenced in the manner previously explained to him. Instead, the punishment imposed must accord with the law in effect at the time. “When the Legislature imposes minimum penalties for certain offenses, the judiciary must enforce that mandate.... No defendant can claim a legitimate expectation of finality in a sentence below the statutorily mandated minimum.” State v. Nicolai, 287 N.J.Super. 528, 531-32 (App.Div.1996); State v. Eigenmann, 280 N.J.Super. 331, 337 (App.Div.1995).

This ruling is certainly contrary to many other states, who offer the defendant the choice of the sentence at the time of offense or at the time of sentencing, under the 'rule of lenity'. Equally, the ruling might be at odds with the ex post facto clauses, IMHO.


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