NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2230-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIELLE N. DIANGELO,

Defendant-Appellant.

_______________________________

Submitted October 17, 2013 - Decided 

Before Judges Lihotz, Maven and Hoffman.

On appeal from the Superior Court of New 

Jersey, Law Division, Middlesex County, 

Indictment Nos. 09-10-1914 and 10-11-0332.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Rochelle Watson, Assistant 

Deputy Public Defender, on the brief).

Andrew C. Carey, Acting Middlesex County 

Prosecutor, attorney for respondent (Brian 

D. Gillet, Special Deputy Attorney General/

Acting Assistant Prosecutor, of counsel and 

on the brief; Matthew P. Tallia, on the 

brief).

The opinion of the court was delivered by 

LIHOTZ, J.A.D.

We consider whether the scope of the Supreme Court's 

holding announced in State v. Hernandez, 208 N.J. 24 (2011), 

addressing jail credit calculations, extends to a defendant 

APPROVED FOR PUBLICATION

February 13, 2014

APPELLATE DIVISION

February 13, 2014
2 A-2230-11T1

sentenced to a custodial term for a violation of probation 

(VOP). In this matter, defendant Danielle N. DiAngelo was 

sentenced to a non-custodial probationary term, after conviction 

for a third-degree offense. While on probation, defendant was 

jailed upon arrest for a new offense and did not post bail. 

Probation filed an application to revoke defendant's 

probationary sentence and impose a custodial term for the prior 

conviction, then served defendant with the statement of charges 

while she was in custody. In the subsequent VOP hearing, 

defendant pled guilty. Citing Hernandez, she requested jail 

credits to reduce the custodial term imposed for the VOP, 

corresponding to the period of custody from arrest on new 

charges to the date of sentencing. The State argued jail credit 

applied only against the sentence on the new charges because 

defendant was arrested solely on the new offenses and the 

custodial term for the VOP was related to and part of the 

initial sentence for her prior offense. The judge agreed and 

concluded the VOP sentence was not a sentence to which Rule

3:21-8 (or the Rule) applied. 

Following our review, we reject the State's argument, which 

suggests the terms of defendant's initial probationary sentence 

included incarceration in the event of a VOP, obviating 

consideration of jail credits for time in custody between filing 
3 A-2230-11T1

VOP charges and imposition of a custodial sentence for violating 

probation. Rather, we conclude the public policy expressed by 

the Supreme Court in Hernandez equally applies to VOP sentences. 

Following this policy, we determine the issuance of the VOP 

statement of charges to a defendant held in custody triggers the 

right to receive jail credits against the VOP sentence for a

defendant's period of pre-adjudication custody, as well as 

against the new offense, irrespective of whether a VOP summons 

or warrant was issued. Accordingly, the trial court's order 

denying defendant's application for jail credits against her VOP 

sentence is reversed. 

I.

As a result of an incident occurring on July 17, 2009, 

defendant was arrested and charged under Middlesex County 

Indictment No. 09-10-1914.

1 On January 20, 2010, she pled guilty 

to third-degree forgery, N.J.S.A. 2C:21-1(a)(2), for which a 

four-year non-custodial probationary sentence was imposed. 

On August 27, 2010, defendant was arrested for a separate 

forgery offense committed during the prior month.

2 She waived 

 

1 Defendant was arrested on August 3, 2009, and posted bail 

on August 7, 2009. The judgment of conviction reflected five 

days jail credit. 

2 Defendant was released on bail on October 30, 2010, and the 

judgment of conviction reflects sixty-five days jail credit. 
4 A-2230-11T1

indictment and pled guilty to third-degree forgery, as charged 

in Middlesex County Accusation No. 10-11-0332. She was 

sentenced on this charge on December 20, 2010. At sentencing, 

defendant also pled guilty to a VOP, related to Indictment 09-

10-1914. 

At the time of sentencing on the Accusation and VOP, the 

Middlesex County judge was informed Monmouth County Indictment 

10-12-2333 had been returned against defendant five days 

earlier. The Monmouth County indictment, which was based on 

events occurring in Millstone between July 22 and July 26, 2010,

charged defendant with three third-degree offenses: forgery, 

N.J.S.A. 2C:21-1(a)(2), uttering a forged instrument, N.J.S.A.

2C:21-1(a)(3), and theft by unlawful taking, N.J.S.A. 2C:20-

3(a).

3 The Middlesex County judge imposed a sentence continuing

defendant's probation on Indictment 09-10-1914. On Accusation 

No. 10-11-0332, he imposed a concurrent three-year probationary 

term. 

On May 9, 2011, defendant was again arrested on a bench 

warrant regarding Monmouth County Indictment No. 10-12-2333.

 

3 On March 19, 2011 defendant was arrested for possession of 

a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), under 

Middlesex County Accusation No. 11-06-220. This charge was

later dismissed when she provided a valid prescription for the 

possessed medication.
5 A-2230-11T1

She did not post bail and remained incarcerated. She pled 

guilty to two counts of that indictment. 

On May 23, 2011, while defendant was incarcerated on the 

Monmouth charges, Middlesex County Probation moved to revoke

probation on Middlesex County Indictment 09-10-1914 and 

Accusation No. 10-11-0332, in part because defendant had 

violated probation for a second time and "failed to remain 

offense-free while under active [p]robation supervision[.]" In 

addition to commission of new offenses, the statement of charges 

identified additional reasons to revoke the probationary 

sentence.

4 The VOP summary stated defendant was "entitled to a 

total number of 5 day[s] [j]ail [c]redit for 09-10-01914-I and 

65 days [j]ail [c]redit for 10-11-00332-A." On June 30, 2011, 

defendant pled guilty to violating the terms of her probation 

imposed on Indictment 09-10-1914 and Accusation 10-11-0332. 

Defendant also pled guilty on August 5, 2011, to two of the 

three Monmouth County charges and was sentenced to three years 

in prison on each conviction, to be served "concurrent to each 

other and concurrent" to the sentence on Middlesex Indictment 

No. 09-10-1914 and Accusation 10-11-0332. She was awarded jail 

 

4 These reasons were defendant's failure to: report as 

required, provide documentation of drug and alcohol evaluations, 

verify employment, provide drug screens, and pay the balance of 

ordered fines.
6 A-2230-11T1

credit against the sentence imposed on the Monmouth County 

convictions for the custodial periods of March 23 to April 5, 

2011, and May 9 to August 4, 2011, a total of 102 days.

During the VOP sentencings, held on September 8, 2011, the 

State requested imposition of a custodial term. The VOP judge 

agreed, terminated defendant's probation, and sentenced her to a 

three-year custodial term for each conviction, to run 

concurrently with each other, and concurrently to her Monmouth 

County sentences. 

In addition to the jail credits identified on the prior 

judgment of convictions, defendant requested additional credit 

from May 23, 2011, when the Middlesex VOP was filed, to August 

5, 2011, when she began serving the Monmouth County sentence.5 

The judge rejected this request and limited jail credits on 

Indictment 09-10-1914 to 37 days for time served from August 3 

to August 7, 2009, and August 27 to September 27, 2010; and, on 

Accusation 10-11-0332, to 65 days for the period in custody from 

August 27 to October 30, 2010.

6 Defendant appealed.

 

5 Defendant further argued she was entitled to thirty-four

days of gap-time credit.

6 We understand defendant was released from custody on 

December 11, 2010. Although an award of jail credits at this 

juncture would not affect defendant's time in custody, the 

appeal should not be treated as moot and dismissed because the 

issue is of public importance and bound to recur time and again 

(continued)
7 A-2230-11T1

Initially, this matter was included on our October 16, 2012 

Excessive Sentencing Oral Argument calendar. See R. 2:9-11. We 

ordered the matter relisted after full briefing, to address the 

impact of Hernandez on the calculation of jail credits related 

to a VOP sentence, asking:

(1) whether the period "between arrest and 

the imposition of a sentence," Rule 3:21-8, 

includes any part of the period from (a) 

incarceration on a new charge, after 

imposition of the initial probationary 

sentence, and (b) re-sentence after a 

violation of probation; and if so (2) when 

accumulation of re-sentence jail credits, 

while in custody on new charges, shall be 

deemed to occur[.] 

On appeal, defendant maintains she is entitled to jail 

credit against her VOP sentences for time spent in custody from 

May 9, 2011, when she was arrested on the Monmouth County 

offenses or, alternatively, from May 23, 2011, the date the VOP 

charges were filed, to August 4, 2011, the day before her 

sentencing on the Monmouth convictions. In a single argument 

she states: 

UNDER STATE V. HERNANDEZ, 208 N.J. 24 

(2011), [DEFENDANT], WHO WAS SERVING A 

PROBATIONARY SENTENCE WHEN SHE WAS ARRESTED 

ON A NEW OFFENSE, IS ENTITLED TO JAIL 

 

(continued)

unless and until a decision determines what course should be 

taken. State v. Grecco, 187 N.J. Super. 421, 423 (App. Div. 

1982) (citing State v. Allen, 73 N.J. 132, 138-39 (1977)). We 

therefore proceed to review the merits.
8 A-2230-11T1

CREDITS AGAINST HER VIOLATION OF PROBATION 

SENTENCES FOR THE ENTIRE PERIOD SHE WAS IN 

PRE[-]SENTENCE CUSTODY ON THE NEW OFFENSE, 

DURING WHICH THE PROBATION REVOCATION 

CHARGES WERE PENDING. 

The State refutes defendant's claimed entitlement to jail 

credits, except for the period from June 30, 2011, the 

acceptance of defendant's VOP guilty plea, to August 4, 2011, 

the day prior to sentencing on the Monmouth County convictions, 

noting bail would have been considered "consolidated" on the 

earlier date. The State also concedes defendant is entitled to 

thirty-four days gap-time credit from August 5 to September 7, 

2011, the day before the VOP sentencing. Accordingly, we need 

to consider only whether jail credit must be awarded against 

defendant's VOP sentence for any period from her May 9, 2011 

arrest on new charges to June 29, 2011. 

II.

A challenge to an award or denial of jail credits, as 

inconsistent with Rule 3:21-8, constitutes an appeal of a 

sentence "not imposed in accordance with law." State v. Rippy, 

431 N.J. Super. 338, 347 (App. Div. 2013) (citation and internal 

quotation marks omitted). In our review, we accord no special 

deference to a trial judge's "'interpretation of the law and 

legal consequences that flow from established facts[.]'" State 

v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006) (quoting 
9 A-2230-11T1

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 

378 (1995)). We review legal issues de novo. 

The determination of a defendant's eligibility for jail 

credits, which in effect reduces the time to be served on a 

sentence, is governed by the Rule, as most recently interpreted 

by the Court in Hernandez. Consistent with the dictates of 

fundamental fairness, Rule 3:21-8 directs a "defendant shall 

receive credit on the term of a custodial sentence for any time 

served in custody or jail or in a state hospital between arrest 

and imposition of sentence." R. 3:21-8. Jail credits are socalled "day-for-day credits." Hernandez, supra, 208 N.J. at 37 

(citing Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App. 

Div. 2005), certif. denied, 186 N.J. 606 (2006)). "[They] are 

applied to the 'front end' of a defendant's sentence, meaning 

that he or she is entitled to credit against the sentence for 

every day . . . held in custody for that offense prior to 

sentencing." Ibid.

Prior to Hernandez, when a defendant in custody faced 

multiple charges, the Rule was interpreted to provide credit 

"only for such confinement as is attributable to the arrest or 

other detention resulting from the particular offense." State 

v. Black, 153 N.J. 438, 456 (1998) (citations and internal 

quotation marks omitted). A defendant sentenced for multiple 
10 A-2230-11T1

offenses was afforded credit for presentence custody, which was 

matched to the criminal offense resulting in confinement. See

State v. Carreker, 172 N.J. 100, 115 (2002) (declining credit 

against a New Jersey sentence as the defendant was already 

serving a New York sentence and a condition of the transfer to 

New Jersey for disposition of pending charges was she continue 

to serve the New York sentence); State v. Hemphill, 391 N.J. 

Super. 67, 70 (App. Div.) (limiting application of jail credits 

to the particular offense for which there was confinement or 

detention), certif. denied, 192 N.J. 68 (2007). Credit for the 

same days of confinement could not be awarded against more than 

one sentence; rather, credits were awarded only against the 

imposed sentence for the offense causing defendant's arrest. 

See In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div.) 

(noting Rule 3:21-8 "only applies to confinement directly 

attributable to the particular offense giving rise to the 

initial incarceration"), certif. denied, 88 N.J. 494 (1981); 

State v. Marnin, 108 N.J. Super. 442, 444 (App. Div.) ("But time 

spent in custody is required to be credited only against the 

sentence on the charge which brought about that custody."),

certif. denied, 55 N.J. 598 (1970); State v. Allen, 155 N.J. 

Super. 582, 585 (App. Div.) (declining to credit sentences 

imposed for offenses in different counties, explaining "to give 
11 A-2230-11T1

. . . credit . . . in both counties would bestow . . . 

impermissible double credit"), certif. denied, 77 N.J. 472 

(1978), disapproved by Hernandez, supra, 208 N.J. at 49. 

In some instances, credit was discretionary, awarded 

"'based on considerations of fairness, justice and fair 

dealings.'" Hernandez, supra, 208 N.J. at 37 (quoting Hemphill, 

supra, 391 N.J. Super. at 70 (granting credit for confinement in 

Scotland while awaiting extradition on New Jersey charges)). 

See also State v. Grate, 311 N.J. Super. 456, 458-59 (App. Div. 

1998) (applying jail credits even though the defendant's 

incarceration was "not directly a consequence of the arrest" but 

"was nevertheless fairly attributable to the indictment on which 

he was eventually sentenced"). 

In Hernandez, the Court sought to resolve questions

surrounding the accrual of jail credits "for time spent in 

presentence custody on multiple charges" after noting the denial 

of jail credits caused an inequity, particularly among indigent 

defendants unable to post bail, who remained in pre-adjudication 

custody on multiple offenses. Hernandez, supra, 208 N.J. at 45. 

"[T]he Court reasoned that uniformity in the award of jail 

credits is required to avoid sentencing disparity and provide 

equal treatment." Rippy, supra, 431 N.J. Super. at 347 (citing 

Hernandez, supra, 208 N.J. at 49). The application of Rule 
12 A-2230-11T1

3:21-8, as expressed in Hernandez, intends to eliminate 

inconsistencies in sentences by assuring the real time 

consequence of a sentence is not dependent upon which charge is 

resolved first, whether charges are embodied in a single 

indictment or multiple indictments, or on factors subject to the 

application of discretion or possible manipulation. Hernandez, 

supra, 208 N.J. at 48-49. 

Concluding the language of the Rule was clear, the Court 

held "defendants are entitled to precisely what the Rule

provides: credits against all sentences 'for any time served in 

custody[,] in jail or in a state hospital between arrest and the 

imposition of sentence' on each case." Id. at 28 (quoting R.

3:21-8). Thus, the Court held the Rule mandates a defendant 

receives jail credit for time spent in presentence custody 

against all sentences imposed on all convictions. Ibid. 

Concisely, presentence credit begins upon arrest until the first 

sentencing. Id. at 50. "[O]nce the first sentence is imposed, 

a defendant awaiting imposition of another sentence accrues no 

more jail credit under Rule 3:21-8." Ibid. 

Hernandez did not specifically address the question here 

presented: that is, whether a defendant, initially arrested and 

held on one charge, who is then served with a VOP for committing 

that new offense, may receive jail credits not only against the 
13 A-2230-11T1

sentence imposed for the new offense, but also for any custodial 

term imposed for the VOP. We acknowledge neither the statutory 

scheme governing probationary sentences nor Rule 3:21-8 cedes a 

direct answer to this question.

"A [VOP] is the vehicle by which the probation officer 

brings a probationer before the court for non-compliance." 

Adult Violation of Probation Guidelines and Procedures, 

Directive #7-08 (issued April 7, 2008), 1-2 (Guidelines).7 Prior 

to completion or discharge of a probationary sentence, when 

Probation has probable cause to believe a defendant disregarded 

the conditions of a probationary sentence by committing a new 

offense, a defendant may be arrested and held pending a hearing 

on the charges stated in the VOP. N.J.S.A. 2C:45-3(a)(2). See 

also State v. Wilkins, 230 N.J. Super. 261, 264 (App. Div.)

(holding a defendant may be found to have violated probation by 

engaging in a new offense even before conviction of a new 

crime), certif. denied, 117 N.J. 84 (1989). The court may order 

a defendant held "without bail, pending a determination of the 

charge[.]" N.J.S.A. 2C:45-3(a)(3). "[T]he issuance of an 

arrest warrant or a summons cannot occur as a result of a mere 

whim, but instead must be precipitated by the preparation of 

 

7 Available at http://www.judiciary.state.nj.us/directive/2008/

dir_7_08a.pdf.
14 A-2230-11T1

underlying documentation that would support the conclusion that 

there is probable cause to believe defendant has violated the 

terms of his [or her] probation." State v. Nellom, 178 N.J.

192, 200-01 (2003). "Each of those initiatives is intended to 

notify [the] defendant that he [or she] is being charged with 

violating probation and to bring him or her before the court." 

Id. at 199.

"With respect to a defendant who violates a probationary 

condition, the initial question is whether the violation 

justifies revocation of probation. Some violations are more 

serious than others." State v. Baylass, 114 N.J. 169, 175 

(1989). Once a court determines "the defendant has inexcusably 

failed to comply with a substantial requirement imposed as a 

condition of the order or if he has been convicted of another 

offense, [the court] may revoke the suspension or probation and 

sentence or resentence the defendant," N.J.S.A. 2C:45-3(a)(4), 

imposing "any sentence that might have been imposed originally 

for the offense of which he was convicted." N.J.S.A. 2C:45-

3(b). "Thus, a probation violation, although it has no bearing 

on the original sentence, may affect the later 'in-out' decision 

whether to incarcerate the defendant." Baylass, supra, 114 N.J. 

at 174.
15 A-2230-11T1

The State argues jail credits, as authorized by the Rule, 

are not triggered under the facts of this case. Noting the Rule

grants jail credit for custodial time "between arrest and the 

imposition of sentence," the State contends a VOP sentence is

merely a continuation of a previously imposed sentence, not a 

newly imposed sentence, making the Rule inapplicable. Further, 

the State maintains defendant's confinement was unrelated to her 

VOP charges because she was neither arrested nor detained for 

violating probation. Because defendant was incarcerated for 

commission of a new third-degree offense and received jail 

credits against that conviction for the time held, no additional 

credit is warranted. We examine these separate issues in more 

detail.

The State first contends a custodial term imposed following 

conviction for a VOP is merely "a resentence," which is legally 

distinguishable from the imposition of an initial sentence 

following conviction, as referenced in Rule 3:21-8. Drawing an 

analogy to a parole violation, the State, cites Black, supra, 

153 N.J. at 461, to suggest a VOP sentence is merely part of the 

initial sentence to which jail credits do not apply. 

Upon conviction of a VOP, our courts have referred to the 

imposition of "a resentence," likely in keeping with the 

phraseology used by the Legislature in N.J.S.A. 2C:45-3(a)(4)
16 A-2230-11T1

(authorizing the court to "revoke the suspension or probation 

and sentence or resentence the defendant" (emphasis added)). 

The term "resentence" also reflects the principle that "'the 

sentence imposed after revocation of probation should be viewed 

as focusing on the original offense rather than on the violation 

of probation as a separate offense.'" State ex rel. C.V., 201

N.J. 281, 297 (2010) (quoting State v. Ryan, 86 N.J. 1, 8, cert. 

denied, 454 U.S. 880, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981)).

Despite the label, we disagree that a sentence imposed once 

probation is revoked is analogous to a violation of parole. 

Drawing on the Court's discussion in Hernandez, we conclude the 

time spent by a probationer who is in custody awaiting 

adjudication for a VOP is not analogous to a defendant arrested 

and held for a parole violation. 

"Parole is a period of supervised release by which a 

prisoner is allowed to serve the final portion of his sentence 

outside the gates of the institution on certain terms and 

conditions, in order to prepare for his eventual return to 

society." Black, supra, 153 N.J. at 447 (citations and internal 

quotation marks omitted). When "a parolee is taken into custody 

on a parole warrant, the confinement is attributable to the 

original offense on which the parole was granted and not to any 

offense or offenses committed during the parolee's release." 
17 A-2230-11T1

Id. at 461. Consequently, confinement pursuant to the 

revocation of parole, even if revocation resulted from 

commission of a new offense, is time served "only against the 

original sentence" because imprisonment was "attributable only 

to the parole violation." Id. at 456. Jail credits do not 

apply because confinement was "time accrued after imposition of 

a custodial sentence." Hernandez, supra, 208 N.J. at 44-45.

A sentence imposed following conviction for a VOP is not a 

continuation of the initial sentence and Black is not 

controlling. We conclude a custodial sentence following 

conviction for a VOP is a separate sentence falling within the 

parameters of the phrase "imposition of sentence" as used in 

Rule 3:21-8. 

The decision to sentence a probationer to imprisonment 

after conviction of a VOP is the result of distinct proceedings. 

Baylass, supra, 114 N.J. at 172-76. A sentencing judge must 

identify and weigh aggravating and mitigating factors at the 

probation violation hearing to determine the appropriate 

sentence. State v. Molina, 114 N.J. 181, 183 (1989) (citing 

Baylass, supra, 114 N.J. at 173). In this process, whether a 

custodial sentence should be imposed requires a new 

determination, not merely ordering a custodial term 
18 A-2230-11T1

predetermined at the time of the initial sentencing for the 

underlying offense. 

In a different context, the Court concluded a trial court 

was mistaken in believing that upon sentencing for a VOP it was 

bound to impose a parole disqualifier, waived by the prosecutor 

upon imposition of the initial probationary sentence. State v. 

Peters, 129 N.J. 210, 216-17 (1992); State v. Vasquez, 129 N.J.

189, 195 (1992). The Court made clear, a "defendant did not at 

the time of pleading guilty to the underlying offense waive the 

right to appeal the prosecutor's attempt to apply the parole 

ineligibility term to [the] defendant's sentence on violation of 

his probation." Vasquez, supra, 129 N.J. at 195. This approach 

highlights the originality of the exercise of judicial 

discretion, as guided by the Code of Criminal Justice, when 

entering a sentence on a VOP conviction. Therefore, in our view 

such a sentencing is like any other.

8

Hernandez provides a more basic reason to reject the 

State's position that jail credits do not apply to a VOP 

sentence. The Court's analysis emphasized the defendant's 

 

8 Although inapplicable to this matter, we are aware this 

court has drawn a distinction in the consequences upon 

resentencing for violation of the terms of special probation, 

authorized by N.J.S.A. 2C:35-14. See State v. Bishop, 429 N.J. 

Super. 533, 541-42 (App. Div.), certif. granted, 216 N.J. 14 

(2013).
19 A-2230-11T1

"custodial status." Hernandez, supra, 208 N.J. at 47. ("Ms. 

Hernandez should be entitled to jail credit . . . for the time 

she spent in custody between her . . . arrest and the date 

sentence was imposed . . . (at which time her custodial status 

changed by virtue of the fact she began to serve a sentence)."). 

Thus, Hernandez clarifies that "imposition of sentence" set 

forth in the Rule means a "custodial sentence," which by 

definition would exclude a non-custodial probationary one. Id.

at 36. See also State v. Towey, 114 N.J. 69, 86 (1989) 

(explaining "the thrust of [Rule 3:21-8] is to restrict credit 

to 'custodial' confinements, either in jail or in a state 

hospital" which were involuntary, thus excluding a defendant's 

voluntary admission to a treatment hospital); Hernandez, supra, 

208 N.J. at 42 (discussing Towey's holding, stating "we held the 

defendant's hospital confinement was not custodial within the 

meaning and requirements of [Rule 3:21-8])."

Having found a VOP sentence falls within the bounds of a 

sentence to which Rule 3:21-8 applies, entitling a defendant to 

jail credit for pre-adjudication confinement, we next consider 

the State's second argument that defendant was not arrested or 

confined for a VOP, precluding accrual of jail credits. Noting 

no detainer was lodged with the statement of VOP charges, the 

State advocates jail credit were properly denied because 
20 A-2230-11T1

"[d]efendant was 'in custody' . . . because of her Monmouth 

County arrest, not her Middlesex County VOP[.]" 

The State's position embraces the fact that probation 

violations vary in severity such that the treatment of 

violations differs. The filing of a VOP is not always 

accompanied by an arrest warrant. We confine our review to a 

defendant who is in custody after commission of another criminal 

offense while on probation, and against whom a summons for a VOP 

has been issued rather than an arrest warrant. 

When a defendant commits a new offense while on probation:

(1) The court may summon the defendant to 

appear before it or may issue a warrant for 

his arrest;

(2) A probation officer or peace officer, 

upon request of the chief probation officer 

or otherwise having probable cause to 

believe that the defendant has failed to 

comply with a requirement imposed as a 

condition of the order or that he has 

committed another offense, may arrest him 

without a warrant;

(3) The court, if there is probable cause to 

believe that the defendant has committed 

another offense or if he has been held to 

answer therefor, may commit him without 

bail, pending a determination of the charge

by the court having jurisdiction thereof[.]

[N.J.S.A. 2C:45-3(a) (emphasis added).]

The Guidelines also state: "If a determination is made to 

file a VOP because of a new arrest, the probation officer shall 
21 A-2230-11T1

request the Superior Court to issue a warrant or a summons to 

appear . . . prior to the expiration of the term of

supervision." Guidelines, supra, at 5. Further, the Guidelines

direct a VOP must be filed when a probationer commits a new 

first or second degree offense, and filed "in most cases" when a 

probationer is arrested for a third or fourth degree offense. 

Ibid. 

Despite the ideal expressed by N.J.S.A. 2C:45-1(a) and the 

Guidelines to achieve consistent probation supervision 

strategies, these provisions allow discretionary decisions on

whether the probationer should be arrested pending review of the

alleged VOP. Moreover, caseload efficiencies among county 

probation departments may vary the treatment of similarly 

situated probationers charged with violating the terms of 

probation. 

The Court identified uniformity and equality as the 

paramount goals to be achieved in criminal sentencing. 

Hernandez, supra, 208 N.J. at 48-49. These goals are necessary 

to maintain fundamental fairness in the treatment of all 

defendants. More specifically, the Court directed jail credits 

must be consistently applied to promote 

uniformity in sentencing; there is no room 

for discretion in either granting or denying 

credits. Both can promote sentence 

disparity based on the lack of uniformity in 

exercising discretion. Thus, such 
22 A-2230-11T1

discretion avoids the very equal protection 

the Rule was designed to promote. 

 

[Ibid.]

This is especially true for the "'presumably innocent but poor 

defendant' who could not make bail or conditions of pre-trial 

release." Id. at 36 (quoting Richardson v. Nickolopoulos, 110 

N.J. 241, 249 n. 2 (1988)).

Hernandez examined two instances where the defendants were 

held on multiple offenses, one where charges arose in the same 

county, and the other where charges originated in different 

counties. Hernandez, supra, 208 N.J. at 28-30. As the Court 

expounded: 

In this context[,] it is inconceivable that 

two defendants sentenced to the same 

sentences for the same crimes in two 

different counties should actually serve 

different amounts of real time depending 

only on the sequence and timing of the 

imposition of sentence. . . . Neither the 

Code of Criminal Justice nor our rules of 

procedure contemplate that the real time a 

defendant is to serve in custody should turn 

on which case a prosecutor or court decides 

to move first.

[Id. at 46-47.]

This pronouncement makes clear that the overarching public 

policy must be to provide consistency in awarding jail credits 

to achieve fairness in sentencing to all.
23 A-2230-11T1

When viewed in such a light, we are hard-pressed to agree 

that application of jail credits among defendants similarly 

situated should vary because Probation requested a warrant or 

detainer for one, but only served a statement of charges to 

another. Hernandez directs such sentencing disparity be 

eliminated. Id. at 48-49.

Here, defendant's commission of new third-degree offenses 

could have subjected her to arrest for violating probation, yet 

her circumstances of detention on the new charges may have 

mitigated the need to also seek an arrest warrant for the VOPs. 

This type of discretionary determination should not preclude her 

entitlement to jail credit on the VOP sentence because she 

actually was in custody awaiting adjudication on both her new 

charge and the VOP. Ibid. Under these circumstances, Hernandez

constrains allowing an exercise of a discretion — the request to 

arrest or detain for the VOP — to impact the real time 

consequences of a defendant's sentence. Id. at 46-47.9

Accordingly, when a VOP statement of charges for a 

commission of a first, second, third or fourth degree offense is 

 

9 Our determination is limited to defendants held prior to 

adjudication. Certainly, had defendant made bail after being 

arrested on the Monmouth County charges prior to issuance of the 

VOP statement of charges, which were not accompanied by a 

request for an arrest warrant, the issue of awarding jail credit 

on the VOP would not arise.
24 A-2230-11T1

served on a confined defendant, the statement of charges serves 

as the substantial equivalent of an arrest as used in Rule 3:21-

8. The serving of the statement of charges to a defendant who 

is confined triggers the award of jail credits for the period of 

pre-adjudication confinement against the VOP sentence and the 

sentence for the new offense. See Hernandez, supra, 208 N.J. at 

36 (stating "'Rule 3:21-8 expresses the public policy of the 

State and should be liberally construed'" (citing State v. 

Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974))). We stress 

the requirement is to award jail credits against sentences for 

all charges causing pre-adjudication confinement, and to avoid 

parsing custodial credit among charges resulting in confinement.

As to when the jail credit clock commences, defendant urges 

credit accrue with her arrest for the new charges. She 

maintains this date provides certainty and insures fundamental 

fairness, eliminates the possibility of sentencing disparity. 

See Hernandez, supra, 208 N.J. at 48-49. Defendant also 

contends other events, such as the filing of the statement of 

charges, detainer, probation chief's warrant, bench warrant, or 

court order to be held without bail, "are all subject to 

vagaries" of negligent delay or willful manipulation. 

We reject defendant's assertion credit against the VOP 

sentence begins upon her arrest on new charges. The Court's 
25 A-2230-11T1

direction in Hernandez that jail credits commence upon arrest, 

id. at 47-49, must be viewed in the context of the circumstances 

examined. Ms. Hernandez was denied jail credit against the 

sentence imposed for the conviction on charges causing her 

initial arrest. Id. at 28-30. Consequently, the pre-custodial 

period for which credit was sought commenced with the 

defendant's arrest. Ibid. Unlike Hernandez, defendant's 

request in this case to grant credit upon arrest would include a 

period of time preceding the submission of the VOP statement of 

charges. We cannot sanction the award of jail credit prior to 

the filing of the VOP charges. 

The more appropriate date for credit against the VOP 

sentence is the date the VOP statement of charges issued. We 

accept this date primarily because VOPs do not automatically 

issue, but must be supported by probable cause. Wilkins, supra, 

230 N.J. Super. at 264 (providing evidence of alleged criminal 

conduct, prior to conviction, is sufficient to support VOP). 

Therefore, Probation cannot pursue a VOP until and unless it has 

probable cause of a defendant's violation of probation. We are 

satisfied the Guidelines sufficiently direct the timing of the 

filing of VOPs to insure charges will not be delayed once 

Probation learns a defendant has committed a new offense. 

Absent a showing of an abusive exercise of authority, it would 
26 A-2230-11T1

be unreasonable to grant defendant credit for the custodial time 

elapsing prior to the filing of a VOP statement of charges.

Here, defendant was arrested on the Monmouth County charges 

on May 9, 2011. The statement of charges for the VOP was filed 

on May 23, 2011. Defendant is entitled to seventy-four days 

jail credit from May 23 to August 4, 2011, which includes the 

period conceded by the State from June 30 to August 4, 2011. 

The JOC must be amended to reflect these credits, as well as the 

agreed thirty-four days gap-time credit, for August 5 to 

September 8, 2011. 

Reversed and remanded.