On appeal from the New Jersey Department of Corrections.
Lora, Michels and Larner. The opinion of the court was delivered by Michels, J.A.D.
Appellants Thomas Trantino, Ralph Davis and John Washington, State Prison inmates whose death sentences were commuted to life imprisonment under our Supreme Court's order in State v. Funicello , 60 N.J. 60 (1972), cert. den. sub nom. New Jersey v. Presha , 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972), appeal from final decisions of respondent New Jersey Department of Corrections refusing to grant them work credits toward parole eligibility for the time spent on death row.*fn1 Following commutation of appellants' death sentences to sentences of life imprisonment, appellants' eligibility for parole became governed by N.J.S.A. 30:4-123.11, which provides:
Any prisoner serving a sentence of life shall be eligible for consideration for release on parole after having served twenty-five years of his sentence, less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments.
Appellants claim that, even though they were not engaged in "productive occupations" while confined on death row, the Funicello case mandates the granting of such work credits. They ground their claim upon the following language of the Supreme Court's opinion in Funicello:
The death penalty * * * is set aside pursuant to the mandate of the United States Supreme Court and the defendant is hereby sentenced to life imprisonment, nunc pro tunc , as of the date the
death sentence was initially imposed, the defendant to be entitled to the same credits as if initially sentenced to life imprisonment. * * * 60 N.J. at 67-68 [Emphasis supplied]
We have no hesitancy in concluding that appellants are not entitled to work credits for work they did not perform. We are thoroughly satisfied that the Supreme Court directive in Funicello cannot be interpreted as requiring us to reach a different result.
The granting of work credits is expressly controlled by N.J.S.A. 30:4-92 which, in pertinent part, provides:
The inmates of all correctional and charitable, hospital, relief and training institutions within the jurisdiction of the State Board shall be employed in such productive occupations as are consistent with their health, strength and mental capacity and shall receive such compensation therefor as the State Board shall determine.
Compensation for inmates of correctional institutions may be in the form of cash or remission of time from sentence or both. Such remission from the time of sentence shall not exceed 1 day for each 5 days of productive occupation , but remission granted under this section shall in no way ...