Double jeopardy protected sex offender from additional penalties omitted from his sentence but required by law


A case decided by the New Jersey Supreme Court this fall held that a judgment of conviction for sexual assault could not be amended, after the defendant had served his sentence, to fix an error in the original sentence that had omitted legally-mandated lifetime community supervision requirements. Even though the original sentence was invalid due to the missing provisions, jeopardy attached as soon as that sentence was completed and the constitution prohibited the court from imposing additional penalties. State v. Schubert, 212 N.J. 295 (Oct. 22, 2012).


The defendant in Schubert pleaded guilty to second degree sexual assault in 1996 and was discharged from probation after completing his sentence in 2003. In 2007, however, the chairman of the parole board discovered that the original sentence had omitted mandatory lifetime community supervision requirements and at his request, the trial court entered an amended judgment in 2008 which added the missing provisions. The defendant then filed a petition to vacate the amended judgment, contending that the trial court had no jurisdiction to amend the sentence after it had been fully completed and that doing so violated the double jeopardy clause of the FIfth Amendment.


Although the double jeopardy clause is best known for protecting individuals from being prosecuting for the same offense after an acquittal, it also protects defendants from receiving multiple punishments for the same offense. The first factor to consider in determining whether an amended judgment amounts to this sort of unlawful multiple punishment is whether the additional sentence provisions are punitive or remedial: if they are remedial, then double jeopardy principles do not apply, but if they are punitive the court must then determine whether they constitute an unlawful additional penalty or merely a correction to an illegal sentence.


Applying these rules in Schubert, the court agreed with the defendant that community supervision for life is punitive in nature, not remedial, because an individual who is subject to community supervision for life has severely restricted freedoms. For example, he must receive permission from his parole officer before choosing where to reside and before commencing employment, and he can also be subject to random drug testing, yearly polygraphs, curfews, and restrictions on internet access, among other conditions. Moving to the second part of the double jeopardy inquiry–whether the amended judgment was an illegal additional penalty or an acceptable correction–the court explained that an unauthorized sentence can generally be corrected at any time before the sentence has been completed, but not after the defendant has served his term, as in this case.


For more information about New Jersey’s sex crimes laws or to schedule a free legal consultation, contact the law offices of Palumbo & Renaud at 908-337-7353.


Sexual Assault Charges in Hamilton, Mercer County & Release on Bail

A Hamilton School Bus Driver was charged with sexual assault in Mercer County.

New Jersey News reports a Hopewell Valley school bus driver has been suspended with pay after being arrested on charges of sexual assault on a teenage girl numerous times in his Hamilton Township home.  The driver, 39, is charged with aggravated sexual assault and being held on $100,000 bail in connection with the incidents that allegedly occurred between June 2010 and April.  During a bail review before the Superior Court Judge, defense counsel urged the Judge to reduce the accused’s $225,000 bail, saying the defendant has no criminal record and is not a flight risk.

Sexual assault is a significant criminal charge that normally results in high bail amounts being imposed upon the accused.  In certain circumstances, bail may be refused by a Judge and the individual accused may be forced to be incarcerated pending trial.  Normally, when deciding whether to grant bail, Judges consider two major factors: whether the accused is a flight risk; and whether the accused is a danger to the community.  If the answer is no to both of these questions, then the individual will be given a bail amount to pay in order to be free pending trial.

It is important to note that bail should not be considered a punishment for an offense, but rather a substantial incentive for the accused person not to flee before a trial can take place.  Thus, an individual with significant means may have a higher bail amount to pay than an individual with less economic wealth as they require different mounts to serve as a deterrent.

I, Anthony N. Palumbo, a New Jersey Sex Crime Defense Attorney, understand the workings of the law and can properly defend accused persons in sexual assault offenses as well as those who are securing bail for such offenses.  Visit my website,, for information on Sex Crime FAQ. I have been defending individuals against sexual assault charges, including those involving minors, in New Jersey for almost four decades.  As a longstanding member of the legal community, a former prosecutor, and a current public defender, I can give you an honest assessment of the penalties you face and the best possible avenues of relief.  If you would like to discuss your case, freely and confidentially, with an experienced attorney at no obligation, contact me at 1-866-664-8118 for a free consultation.