Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[43 NJSuper Page 523] Lipschitz, presently an inmate of the New Jersey State Prison, brings this action in lieu
of prerogative writ (R.R. 4:88-8) seeking, in effect, an order directing that the appropriate prison officials, in computing commutation time to be credited against the unserved portion of his sentence, take into consideration the time spent by him in the county jail awaiting trial and sentence. Stated negatively, he seeks to enjoin these officials from continuing their present practice of considering only the time spent in State Prison in calculating commutation time. We note, in passing, that plaintiff's resourcefulness in seeking to cut down the time he has to spend in prison is not limited to the present action. See Lipschitz v. State , 43 N.J. Super. 386 (App. Div. , Jan. 22, 1957), where plaintiff unsuccessfully sought to receive credit on his present sentence, as well as on the unserved maximum of the former sentence on which he had been paroled and the parole revoked, for time spent in the county jail.
Although it is not at all clear just what "final decision or action" plaintiff seeks to have us review -- neither brief deals with the subject -- we consider the matter on the merits.
Plaintiff was arrested for violation of the gambling laws on October 28, 1954 and thereafter was confined to the Essex County Jail awaiting trial, conviction and sentence until July 1, 1955, a period of 246 days. He was sentenced to State Prison for a term of 2 1/2 to 3 years. Consistent with the requirement of R.R. 3:7-10(g), the order of commitment directed that he receive credit on the term imposed for the time spent in county jail.
R.S. 30:4-140 provides for certain credits against the maximum and minimum term of a State Prison sentence. These credits are awarded for "faithful performance of assigned labor, * * * continuous orderly deportment, * * * and * * * manifest effort of self-improvement and control * * *." They are allowed on a progressive or accelerated basis, increasing in direct ratio to the length of sentence. Full commutation credits on plaintiff's three-year sentence would amount to 228 days. He claims he is entitled to credits not only for the time he has spent and will continue to spend in State Prison, but also for the
period of confinement in county jail. The State maintains that commutation time for the 246 days spent there cannot be granted under R.S. 30:4-140 -- this in conformity with an opinion of the Attorney-General to the Commissioner of the Department of Institutions and Agencies dated September 18, 1953. Op. Atty. Gen., No. 37 (1953).
Plaintiff places great reliance upon R.R. 3:7-10(g) which, he says, requires that he receive not only credit for the actual number of days while in county jail, but also commutation credits thereon. He argues that the Supreme Court has by its rule declared county jail time and State Prison time as being one and the same. R.R. 3:7-10(g) provides:
"In all custodial sentences the prisoner shall receive credit on the term imposed for any time he may have served in custody between his arrest and the imposition of sentence. * * *"
Plaintiff's contention is not in accord with the plain meaning of the rule, which makes no reference whatsoever to the prisoner's conduct. The rule deals only with the sentencing of a defendant, is addressed solely to the judiciary, and is necessarily concerned only with those matters which are within the judicial sphere. It serves as an administrative guide to the trial judge in fixing the terms of sentence.
It is undeniable that the granting of commutation credits is purely a legislative function and could not properly be included in the sentencing procedure provided for by the rules. Cf. Zink v. Lear , 28 N.J. Super. 515 (App. Div. 1953). Accordingly, any rights which a prisoner has to such ...