The defendant appealed to the Appellate Division from the dismissal of his appeal to the Morris County Court. We certified the matter on our own motion. See R. R. 1:10-l(a).
Patrolman Mericle of the Dover police force filed a complaint in the Municipal Court of Dover charging the defendant Mull with uttering loud and indecent language in a public street in violation of the Disorderly Persons Law (N. J. S. 2A:170-29). The defendant entered a plea of non vult, and the ensuing formal judgment, after setting forth that the defendant was informed of his constitutional rights and was afforded an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment, adjudged the defendant to be guilty and sentenced him to the county jail for 90 days. The defendant appealed to the Morris County Court and the State moved to dismiss his appeal in view of his non vult plea in the municipal court. The appeal was dismissed and notice of appeal to the Appellate Division from the judgment of dismissal was filed by the defendant. In support of his appeal, he urges that under N. J. S. 2A :3-6 and R. R. 3:10-10 he was, notwithstanding his plea of non vult, entitled to prosecute his appeal to the Morris County Court and to be heard there de novo on the issue of guilt as well as on the punishment in the event of a new finding of guilt.
The defendant’s plea of non vult was an implied confession of the offense and was equivalent to a guilty plea insofar as the judgment of conviction in the proceeding before the municipal court was concerned. See State v. Pometti, 12 N. J. 446, 452 (1953); Waters v. Court of Special Sessions of Essex County, 132 N. J. L. 44, 47 (Sup. Ct. 1944). There is nothing before us indicating that the plea was not made voluntarily and with full understanding of the nature of the charge (R. R. 8:4-3; R. R. 3 :5-2), or that the defendant ever sought leave from the municipal court to withdraw his plea. See State v. Nicastro, 41 N. J.
“Would the fact that the defendant pleaded guilty in the municipal court require or justify a dismissal of his appeal? In this regard, see State v. Webber, 76 N. J. L. 199 (Sup. Ct. 1908) ; State v. Heyer, 89 N. J. L. 187 (M. & A. 1916) ; State ex rel. Borough of South Belmar v. Whittington, 4 N. J. Misc. 590 (Sup. Ct. 1926) ; 2 Am. Jur., Appeal and Mrror, § 230, p. 987.”
In State v. Nicastro, supra, and State v. Schrier, 51 N. J. Super. 81 (1958), modified, 30 N. J. 241 (1959), the Essex County Court recently took the position that de novo review of the issue of guilt is impermissible where the conviction in the municipal court is based on a plea of guilt or non vull, and that an appeal to the County Court seeking such review is dismissible.
Elsewhere in the country the matter has been dealt with in varying fashions. See Annotation, "Plea of guilty in justice of the peace or similar inferior court as precluding appeaV’ 42 A. L. R. 2d 995 (1955). In some states the local statutory provisions have been construed as authorizing a de novo review on appeal notwithstanding the guilty plea below.
In Burris v. Davis, 46 Ariz. 127, 46 P. 2d 1084 (1935), the defendant entered a plea of guilt to the charge of driving while intoxicated and was thereupon convicted and sentenced by the justice of the peace to a term in jail. He sought to appeal and the question as to whether he had the right to do so came before the Supreme Court of Arizona. In holding that he was entitled to have his conviction reviewed on appeal, the court first acknowledged that ordinarily persons who plead guilty may not appeal (5 Wharton’s Criminal Law and
In contrast, the New Jersey municipal courts are courts of record and their administration and practice are subject to carefully detailed rules promulgated by the Supreme Court. See Const. 1947, Art. VI, § II, par. 3; Board of Health of Weehawken Tp. v. New York Central R. Co., 10 N. J. 284, 290, 292 (1952); cf. Vanderbilt, “The Municipal Court,” 10 Rutgers L. rev. 647 (1956). As is true of all other courts, they maintain adequate records under general supervision of the Administrative Director. See R. R. 8:13. Their municipal magistrates operate under rules of conduct applicable to judges generally in the State (R. R. 8:13-7; R. R. 1:25); three out of four of them are now legally trained, and in due course all of them will be legally trained. See N. J. S. 2A :8-7. The County Court judges are ex-officio judges of the municipal courts, and the Superior Court judges may be assigned temporarily to the municipal courts. See N. J. S. 2A :8-11. The municipal magistrates exercise all of the traditional judicial powers, including the extraordinary power of contempt, and their actions are generally reviewable in the County Court as provided in N. J. S. 2A :3-6 and R. R. 3 :10-10. See State v. Yaccarino, 3 N. J. 291 (1949); State v. Menke, 25 N. J. 66 (1957). N. J. S. 2A:3-6 states that the County Court of each county may hear, determine and review non-civil municipal court judgments; while it
Prior to the 1947 Constitution and the statutory creation of the present municipal court system (L. 1948, c. 264 — see N. J. S. 2A :8-1 et seq.) there were variously named local tribunals whose judgments were reviewable under specific statutory provisions. Many of the statutes expressly excluded appeal where the judgment sought to be appealed from was by confession. See, e. g., R. S. 2:33-108; R. S. 2:230-7; R. S. 2:219-3; R. S. 2:224-8; cf. East Orange v. Richardson, 71 N. J. L. 458, 461 (Sup. Ct. 1904). Other statutes provided that the appeal shall operate as an application for a trial de novo and as a waiver of technical defects in the record, but made no mention of the effect of the plea of guilt. See, e. g., R. S. 2:206-11, as amended by L. 1941, c. 54, and L. 1942, c. 35. In State ex rel. Borough of South Belmar v. Whittington, 4 N. J. Misc. 590 (Sup. Ct. 1926), cited by this court in State v. Meinlcen, supra, the defendant entered the plea of guilt before the mayor of South Belmar to the charge of using loud, indecent and profane language and being under the influence of intoxicating liquors. The defendant was convicted on his plea and appealed to the Court of Common Pleas which set the conviction aside on the ground, inter alia, that the plea in the mayor’s court would not support a conviction of the offense alleged. However, the former Supreme Court set aside the action of the Court of Common Pleas, pointing out that the plea adequately supported the conviction and that the defendant “cannot deny what his plea admits.” See also State v. Webber, 76 N. J. L. 199, 201 (Sup. Ct. 1908), affirmed 77 N. J. L. 580 (E. & A. 1909).
When in 1948 the present Supreme Court adopted its first set of rules, it provided in Buie 2:11 that appeal from
In the light of all of the foregoing we have concluded that while a defendant who has pleaded guilty in the municipal court may properly take his appeal to the County Court under the general terms of N. J. S. 2A :3-6 and R. R. 3:10-10, he may not justly be permitted to reopen and relitigate in the County Court the factual issue as to his commission of the offense which he openly confessed in the municipal court by the guilty plea on which his conviction was ñrmly and legally grounded. He may, of course, apply to the municipal court for leave to withdraw his plea on the ground that it was not made voluntarily and with full understanding of the nature of the charge (R. R. 8:4-3; R. R. 3 :5-2) or on any other just ground; and in the event the municipal court declines to exercise its discretion so as to permit withdrawal of the plea, he may review its action in the County Court. See State v. Nicastro, supra. But, absent proper withdrawal of the plea, his appeal in the
Applying the above principles, the County Court should not have dismissed the appeal in the instant matter but should have held the defendant legally bound by his guilty plea and have imposed such sentence as it deemed just and proper under the circumstances. In the exercise of this sentencing power the County Court will act much in the same manner as if the plea of guilt to the offense charged in the complaint had originally been entered before it and will take care to afford to the defendant opportunity “to make a statement in his own behalf and to present any information in mitigation of punishment.” Cf. R. R. 3:7-10(c). It seems to us that this procedure will justly protect the rights of both the State and the defendant and will fairly recognize the judicial authority of the municipal court while safeguarding against dangers of abuse. See Bernstein, “The Inordinate Sentencing Power of the Municipal Court," Passaic County Reporter (Dec. 1956).
Reversed and remanded for further proceedings in accordance with this opinion.
For reversal — Chief Justice Weinteaub, and Justices Buelijstg, Jacobs, Ekancis, Peoctoe, Hall and Schet-TINO — 7.
For affirmance — None.