(dissenting) — The majority conclude that “the petitioner is not now being confined under a presently valid commitment . . . ” I cannot agree. For ease of reference, the significant events in this case are set forth chronologically, as follows:
(1) October 1, 1943: Petitioner was convicted of second-degree burglary; sentenced by the court to not more than fifteen years imprisonment.
(2) October 31, 1947: Petitioner was convicted of escape and second-degree assault; sentenced by the court to not more than ten years confinement on each count, sentences to run concurrently.
(3) January 31, 1948: Parole board issued its order, purportedly “paroling” petitioner with respect to the fifteen-year burglary sentence; petitioner, however, not actually released from confinement.
(4) March 3, 1958: Petitioner’s parole on the second-degree burglary conviction was revoked by the board, and he was ordered to serve the remainder of his fifteen-year sentence for that crime.
In State ex rel. Mason v. Superior Court (1954), 44 Wn. (2d) 67, 265 P. (2d) 253, this court held that the action of the parole board in granting parole prior to the expiration of the maximum sentence imposed by the court, in effect, permitted a second sentence — imposed for a later crime-— to commence running prior to the expiration of the full term of the earlier judicial sentence. In other words, we said that the governing statute, RCW 9.92.080,
“ . . . should be interpreted as if the italicized words were added:
“ . . whenever a person while under sentence of felony commits another felony and is sentenced to another term of imprisonment, such latter term shall not begin until the expiration of incarceration under all prior terms ...'"
In relation to the Mason case, it seems to me that it should be pointed out that the parole board, at any time prior to the terminal date of Mason’s first sentence, could have revoked its order which gave Mason the privilege of parole. *302At the time when we ruled on the validity of Mason’s confinement, it had not done so. Yet there was no question that it would be highly unreasonable and illogical to hold that Mason, who had just been convicted of the crime of forgery, committed while he was on parole under a sentence for grand larceny, should remain free until the terminal date of his judicially imposed grand larceny sentence, unless, in the meantime, the parole board saw fit to revoke its order of parole. It, therefore, logically followed that, in order to avoid this result, it was necessary to relate Mason’s confinement to the judicially imposed forgery sentence by reading the statute as above quoted.
However, if the parole board had revoked Mason’s parole, his confinement could thereupon have been related to his first sentence for grand larceny, and, logically, under the statute, would relate only to the first sentence until its termination. Thus, it would seem that, in the face of a fact pattern such as arose in Mason, and is also present in the instant case — i.e., where a criminal offender commits a second crime while still under sentence for an earlier crime —his subsequent confinement may be related to either the remainder of the maximum sentence imposed by the court for the first crime, or to the sentence imposed for the second crime, dependent upon the action or nonaction of the parole board. By granting parole with respect to the first sentence, the board may cause the offender’s subsequent confinement to constitute a potential credit toward completion of the second sentence. But, if no parole is granted — or such parole as has been granted is revoked prior to the termination of the first sentence — then that confinement which otherwise would have been a potential credit toward the second sentence will instead relate to and be an actual credit toward the first sentence, and will leave the second sentence to be fully served after completion of the first, subject, of course, to the authority and discretion of the parole board to determine the time to be served respecting the second sentence.
Applying this analysis to the instant case, that time which was served by the petitioner subsequent to the parole *303board’s order of January 31, 1948, constituted a potential credit toward completion of the ten-year sentences imposed by the court for escape and assault. However, when the parole board, on March 3, 1958, revoked its order of parole respecting the fifteen-year burglary sentence, it erased this potential credit and, instead, applied the post-January 31, 1948, confinement toward completion of the burglary sentence, leaving the ten-year escape and assault sentences yet to be served. Therefore, when, on October 8, 1958, the terminal date of the fifteen-year burglary sentence, arrived, the petitioner, contra to the views expressed in the majority opinion, was not entitled to be released, since he still had the ten-year escape and assault sentences to serve. The terminal date of these latter sentences (running concurrently, pursuant to the order of the court at the time of the escape and assault convictions) will not arrive until October 8, 1968, although, as indicated above, the board, in its discretion, may grant parole prior to that date if it sees fit to do so.
Donworth, and Rosellini, JJ., concur with Finley, J.