State v. Livingston

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Argued February 13, 2002

This appeal raises novel questions concerning the application of the Persistent Offenders Accountability Act, also known as the “Three Strikes” law, N.J.S.A. 2C:43-7.1a. That statute mandates a sentence of life imprisonment for a third-time criminal offender “who has on two or more prior and separate occasions been convicted” of certain enumerated first- and second-degree offenses. The specific issue raised is whether the statute may be applied to a third-time offender who previously entered two separate guilty pleas for two separate crimes at one plea proceeding and was sentenced for those separate crimes in one sentencing proceeding. To answer that question, we must decide whether those contemporaneous convictions were imposed “on two or more prior and separate occasions” as required by the “Three Strikes” law.

The Appellate Division in a published opinion concluded that defendant could not be sentenced to life imprisonment under the “Three Strikes” law because his two prior convictions were imposed in one proceeding and not “on two or more prior and separate occasions.” State v. Livingston, 340 N.J. Super. 133, 140 (2001). The court reasoned that the statute focuses on separate convictions, not separate crimes, and was not applicable because defendant’s convictions “occurred in a single continuous proceeding.” Id. at 144. We agree and hold that a person is not eligible for sentencing under the “Three Strikes” law unless the predicate convictions have been imposed in two or more separate and distinct proceedings held on different dates, rather than one single continuous proceeding.

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