The Double Jeopardy Clause prohibits the government from, among other things, punishing a citizen twice for the same crime.  On occasion, a trial court will impose a sentence that is not consistent with New Jersey’s Criminal Code. If the sentence is more lenient than required by the Code, the government may appeal the sentence contending that it was illegal. Under those circumstances, the courts in this state have regularly concluded that an illegal sentence can be vacated and a new sentence imposed without offending the Double Jeopardy Clause.  Recently, the Appellate Division addressed this issue in the context of a marijuana prosecution.

In the case before the court, defendant pled guilty to various drug-related offenses, including two counts of possession of marijuana with the intent to distribute. The plea arrangement allowed  defendant to attend and complete a term in New Jersey’s Drug Court with the understanding that, if he failed to complete the Drug Court- sentence, he would be resentenced to a term of five years with an 18 month parole disqualifier, which was a sentence consistent with the so-called Brimage guidelines.  Parenthetically, in the case titled State v. Brimage, the Supreme Court noted a disparity of sentencing treatment across the state for certain drug related offenses and requires the preparation of uniform guidelines for the sentencing in cases of that type.

Later, defendant was terminated from the Drug Court, pled to a violation of probation and was sentenced to a term of imprisonment for three years.  At sentencing, the government did not demand a parole disqualifier consistent with the original plea agreement. Recognizing its mistake, it later returned to the court arguing that the three year term was illegal and that a parole disqualifier was required. The case found its way to the Appellate Division.

On appeal, defendant argued that the state waived the parole disqualifier contained in the original plea agreement. The government, on the other hand, argued that the sentence was illegal. The court rejected this argument, observed that the double jeopardy clause requires some sense of finality, redefined the illegal sentence concept and concluded that a violation of the Brimage guidelines did not render the sentence illegal.