The opinion of the court was delivered by
Kilkenny, J. A. D.
Defendant voluntarily pleaded guilt}’ on October 27, 1965 to an indictment charging him with having committed the crime of larceny from the person (N. J. 8. 2A :119-1) on August 22, 1965. He was sentenced on November 18, 1965 to State Prison for a term of not less than six years, nor more than seven years. In addition, he was ordered to pay a fine of $2,000 and to stand committed until tlie fine was paid.
At the time o£ sentence, the State moved to dismiss three other indictments — for robbery, rape and sodomy — which resulted from the same occurrence. The motion was then denied. Subsequently, an order was entered on February 2, 196? dismissing the other three outstanding indictments.
Defendant took no direct appeal from the judgment of conviction. However, sometime later he applied for post-conviction relief, contending that the $2,000 fine violated the due process and equal protection clauses of the Fourteenth Amendment. The matter was heard before the sentencing judge on December 21, 1967 and decided adversely to defendant. An order denying defendant’s application for post-conviction relief was entered on January 16, 1968.
Defendant prosecutes this appeal from that order, as an indigent, with the aid of the Public Defender.
The sole point raised on appeal is that it is a denial of the constitutional guarantees of equal protection and due process of the law, as well as against excessive fines, to sentence an indigent to the maximum term of confinement and a fine, which may readily be paid by a nonindigent but results in further confinement for the indigent because of his inability to pay.
Larceny from the person, N. J. S. 2A :13 9—1, is a high misdemeanor. The punishment for this crime is regulated by A". J. S. 2A :85-6. It is limited to “a fine of not more than $2,000, or by imprisonment for not more than 7 years, or both.” Quite obviously, the sentencing judge in this case imposed the maximum fine and the maximum prison sentence. He had a right to do so, having stayed within the statutory limits.
An appellate court may, nevertheless, revise the sentence if it is manifestly excessive, or unduly punitive in the light of the total circumstances. The power to revise a sentence must be exercised with extreme care. We ought not interfere with the sentence imposed “in the absence of a clear showing of abuse of discretion.” State v. Tyson, 43 N. J. 411, 417 (1964). See, too, State v. Brown, 46 N. J. 96, 108 (1965) ; State v. Ford, 92 N. J. Super. 356, 361 (App. Div. 1966); State v. Johnson, 67 N. J. Super. 414, 424-425 (App. Div. 1961).
We pause at this point to note another important fact, particularly pertinent to the issue presented. The State Parole Board, on March 22, 1968, acted favorably upon defendant’s application for parole. It has granted him parole effective March 4, 1969. However, it notes that the $2,000 fine has not been paid and has made as a special condition of his parole:
“After paying $500.00 of your fine in the amount of $2,000.00 or working $500.00 off in the institution at the rate of $5.00 [a day], you will be released to make weekly payments in the amount of $10.00 to the Passaic County Probation Officer until the balance of the fine is paid in full. Such payments are to begin three weeks after date of parole.”
In effect, defendant will be confined an additional 100 days after March 4, 1969, the effective parole date, unless on or before then he pays $500.
N. J. S. 2A :166—16 provides that a person confined to prison by reason of default in the payment of a fine, who was ordered to stand committed until the fine is paid, shall be given credit against the amount of the fine at the rate of $5 for each day of confinement, after completing his prison sentence. If he is not being held by reason of any other sentence, he shall be discharged when a sufficient number of days of further confinement, at $5 a day, equals the amount due on his unpaid fine.
The Parole Board has the authority under N. J. S. A. 30:4-123.15 to release an inmate on parole, who has failed to pay the fine imposed, “upon condition that such fine and costs, be paid, through the probation office of the county from which the inmate was committed, in weekly amounts, to be fixed by the board.” That authority was exercised in the present ease, except it was subject to the condition that defendant must pay or work off at the $5 a day rate $500 of the $2,000 fine. Obviously, the board, in the sound exercise of its discretion, could have released defendant from prison to pay off the entire fine through the probation office, in weekly amounts fixed by it. That relief may still be sought and granted. However, we shall presume for further discussion that the terms fixed by the Parole Board will remain, and that defendant faces the possibility, if someone does not come to his financial aid by March 4, 1969 with the $300 to pay on account of the fine, to remain confined for another 100 days beyond the effective parole date.
Does such a, further prison confinement to work off a fine at $5 a day deprive an indigent inmate of equal protection or due process of law, or constitute the imposition of an excessive penalty? The Public Defender’s argument is that the poor prisoner must stay in jail for an added period of time, as opposed to the financially able inmate who can buy his release by paying the fine.
Defendant relied upon People v. Collins, 47 Misc. 2d 210, 261 N. Y. S. 2d 970 (Cty. Ct. 1965). Defendant therein was convicted of assault in the third degree and sentenced to the county jail for a term of 11 months and 29 days. The maximum prison sentence for this misdemeanor in New York was one year. He was also fined $250, in default of which lie was to be confined at the rate of $1 a day for each dollar of fine unpaid. lie challenged the validity of his potential confinement for the additional 250 days, maintaining that it was an unjust discrimination against a man without funds. The Orange County Court agreed and struck from the sentence the unpaid fine. It reasoned that the indigent prisoner, unlike one financially able, did not have the power to control or limit the time of his confinement.
A year later, the New York Court of Appeals was faced with this same general problem in People v. Saffore, 18 N. Y. 2d 101, 271 N. Y. S. 2d 972, 218 N. E. 2d 686 (Ct. App. 1966). There, defendant pleaded guilty to a misdemeanor. As noted above, the New York statute fixed a one-year limit as the maximum term of imprisonment for a misdemeanor violation. The trial court,. knowing that defendant was an indigent, sentenced him to one year’s imprisonment and fined him $500, with the proviso that, if the fine were not paid, defendant would be required to serve one day’s imprisonment for each dollar of the fine unpaid. The Court of Appeals held that, when the sentencing judge is cognizant of an individual’s inability to pay a fine, subsequent imprisonment in lieu of the fine, which results in imprisonment for more than the permissible maximum prison sentence, violates the defendant’s right to equal protection and due process of the law and is proscribed by the Eighth Amendment to the United States Constitution.
The rationale of the Saffore decision is that to order a defendant to stay in prison until he pays a fine, when the court knows that he cannot pay it, is not the use of a lawful means for enforcing payment but is an illegal method of requiring imprisonment beyond the maximum term of imprisonment allowed by the statute. It recognized that imprisonment can validly be used as a method of collection for “refusal” to pay a fine, but “it is illegal so to imprison a defendant who is financially unable to pay.” 271 N. Y. S. 2d, at p. 974, 218 N. E. 2d, at p. 687; emphasis added)
To the same effect, and for the same reason, see People v. Mackey, 18 N. Y. 2d 755, 274 N. Y. S. 2d 682, 221 N. E. 2d 462 (Ct. App. 1966), and People v. Tennyson, 19 N. Y. 2d 573, 281 N. Y. S. 2d 76, 227 N. E. 2d 876 (Ct. App. 1967), holding the portion of the sentence, which required defendant to serve out the unpaid fine at $1 per day, illegal and violative of his constitutional rights.
For the contrary view, see Henderson v. United States, 189 A. 2d 132 (D. C. Ct. App. 1963), and McKinney v. Hamilton, 282 N. Y. 339, 26 N. E. 2d 949, 951, 127 A. L. R. 1283 (Ct. App. 1940).
It is important to note, however, that the court said in People v. Saffore:
“We do not hold illegal every judgment which condemns a defendant to confinement if he does not pay his fine. We do hold that, when payment of a fine is impossible and known by the court to be impossible, imprisonment to work out the fine, if it results in a total imprisonment [in excess of that provided by the applicable statute] * * * violates the defendant’s right to equal protection of the law, and the constitutional ban against excessive fines.” (271 N. Y. S. 2d at p. 975, 218 N. E. 2d, at p. 688; emphasis added)
Thus, the declaration of illegality was grounded upon the fact that the additional confinement in jail to satisfy the unpaid fine effected an excess of imprisonment beyond the statutory limit.
The same rationale was employed in Sawyer v. District of Columbia, 238 A. 2d 314 (D. C. Ct. App. 1968).
Recently, in Wright v. Matthews, 163 S. E. 2d 158 (Va. Sup. Ct. App., September 6, 1968), it was held that imprisonment of an indigent defendant for failure to pay court costs violates the prisoner’s rights under the Thirteenth Amendment, which prohibits involuntary servitude.
Running throughout these cases is the common factor that further confinement for default in payment of a fine, or costs, which extends the term of prison commitment beyond the statutory jail limitation, deprives the indigent prisoner of his constitutional rights.
. We have not been referred to any case where confinement by reason of default in payment of a fine, due solely to indigency, has been held unconstitutional, if that additional deprivation of freedom does not extend the imprisonment bejond the statutory limit. Rather, the confinement for failure to pay the fine was deemed to be not in violation of constitutional rights under such circumstances. Thus, in United States ex rel. Privitera v. Kross, 239 F. Supp. 118 (S. D. N. Y. 1965), affirmed 345 F. 2d 533 (2 Cir. 1965), cretiorari denied 382 U. S. 911, 86 S. Ct. 254, 15 L. Ed. 2d 163 (1965), Privitera was convicted in New York City Criminal Court for illegal possession of lottery slips. This is a misdemeanor punishable by not more than a year in prison or not more than a fine of $500 or both. Defendant was sentenced to prison for 30 days and fined $500. In the event the fine was not paid, he was to serve an additional 60 days’ imprisonment. Thus, his total possible confinement to jail was 90 days upon his conviction of an offense for which the permissible maximum prison term was one year.
Privitera completed his 30-day direct prison sentence and sought by writ of habeas corpus in the federal court to be released from the additional 60-da,y confinement on his default in paying the fine. He claimed that the additional time to be served violated his constitutional rights secured by the Eighth Amendment and the Equal Protection Clause. The federal court denied the writ. It dismissed defendant’s arguments as lacking in merit. It noted that his imprisonment term would not exceed 90 days — assuming nonpayment of the fine — whereas the trial judge could have justifiably, in his discretion, sentenced defendant to imprisonment for one jrear, within the permissible statutory limit. It found wholly beside the point his contention that lack of funds compelled him to remain incarcerated for another 60 days, while another comdcted of the same crime and given the same punishment might effect his immediate release after the first 30-day period, if possessed of the $500. It observed:
“Since sentences are individualized, it serves no useful purpose to compare the sentence of this defendant with that of another hypothetical defendant.” 239 F. Supp. 320.
In the instant case, the possible confinement of defendant for an additional 100 days to work off the $500 portion of the fine will not result in his imprisonment beyond the maximum statutory prison sentence. Instead of being released on parole on March 4, 1969, he will be detained until June 12, 1969, at most. The seven-year prison sentence imposed in 1965 could have kept him in prison until November 18, 1912. Thus, the evil condemned in People v. Saffore and the similar cases, supra, will not materialize here.
Imprisonment in lieu of the payment of a fine has been a generally accepted rule in this country and in our State. N. J. S. 2A: 166-16, supra, attests thereto. So does People v. Saffore, supra, wherein the court acknowledged, “We do not hold illegal every judgment which condemns a defendant to confinement if he does not pay his fine.” 271 N. Y. S. 2d, at p. 975, 218 N. E. 2d, at p. 688. United States ex rel. Privitera v. Kross, supra, follows the rule.
In State v. Johnson, 30 N. J. Super. 235 (Law Div. 1954), where defendant pleaded guilty to a charge of drunken driving, the court imposed a fiue of $200 and provided that, in default of payment of the fine, defendant should serve 30 dajrs in jail. Defendant failed to pay the fine. It was held that he could properly bo required to serve 30 days in jail. The court observed:
“Committing a prisoner to jail until a fine is paid is no part of the punishment. The penalty, or the punishment adjudged, is the fine, and the custody adjudged is the mode of enforcing the payment of the fine. This is in accordance with the common law.” (Citing, 35 Am. Jur. 184, § 546, at p. 237)
See, too, 21 Am. Jur. 2d 557, § 603, and 36A C. J. S. Fines § 11, p. 443.
In Baucum v. N. J. Parole Board, 68 N. J. Super. 271 (App. Div. 1961), a husband was convicted of refusing to support his destitute wife and children. He was sentenced to a term in State Prison plus a $1,000 fine. He was paroled to pay the fine, in installments. He defaulted. He was returned to prison to “work off” his fine at the rate of $3 per day, as then provided by N. J. S. 2A :166-16. Whether it was defendant’s indigency or wrongful neglect which caused the default does not appear in the opinion. The case is noted only as another example of our established policy of confinement for failure to pay a fine. N. J. S. 2A :164-18 is cited as authority therefor.
Should this court accept defendant’s position that a state may not impose fines on those unable to pay, so long as the penalty for default is imprisonment, a sentence imposing a fine’ upon an indigent would mandate a remand for a corrected sentence. The new sentence might then eliminate the fine but provide for a longer prison term within the statutory limits to offset the elimination of the fine. Such a “right” would be “illusory,” as the court observed in United States ex rel. Privitera v. Kross, supra, 239 F. Supp., at p. 121.
It would seem appropriate to measure a defendant’s ability to pay a fine imposed as of the time when he has served his prison sentence or is eligible for parole therefrom and faces the possibility of further confinement for the unpaid fine. If he is then financially able to pay, there is no reason not to do so. If at that time, he is without funds, there is adequate administrative remedy available to obtain his release on terms fixed by the Parole Board. It is to be presumed that its action will not be arbitrary or capricious. If it is, recourse may be had under B. B. 4:88-8 to this court.
Can we say in this case that the Parole Board was arbitrary when it paroled defendant, effective March 4, 1969, when he might have been detained until November 1972, when only a little more than half of his prison term has been served, even if he is detained until June 1969, another 100 days, because he did not pay $500 on account of his $2,000 fine — a mere one-fourth thereof — and allowed himalmost three years thereafter to pay the $1,500 balance, at $10’ a week ? We think such terms were not arbitrary or capricious, but most reasonable and liberal, considering the gravity of the offense and its aggravating circumstances.
It might well be that further investigation of defendant’s financial status as of the effective date of his parole, or shortly prior thereto, might induce the Parole Board to modify further the condition of parole so as to permit his discharge on the effective date upon the payment of the entire fine at a reasonable weekly rate outside prison walls; However, the Legislature has vested that power and disére tion in the Parole Board. We ought not interfere, absent a showing of an abuse of discretion by the Board. No such showring has been made. Certainly, the action taken does not, in any event, confine this defendant beyond the statutory prison sentence limit — the rationale employed in cases such as People v. Saffore, supra. We find it unnecessary under the facts herein to decide whether our courts should subscribe fully to the doctrine that a fine may never be constitutionally imposed upon an indigent, if default in its payment will result in some temporary confinement.
The order under review is affirmed.