concurring and dissenting.
On the summary offense of driving while operating privilege is suspended or revoked, DUI related, 75 Pa.C.S.A. § 1543(b), appellee was sentenced to intermediate punishment in the form of ninety (90) days of “home confinement.” While it is abundantly clear that the lower court imposed an illegal sentence for appellee’s violation of 75 Pa.C.S.A. § 1543(b), I am convinced that manifest justice requires that we affirm his judgment of sentence. Accordingly, I dissent from that portion of the majority’s opinion which remands this case for resentencing.
*9Having determined that the lower court imposed an illegal sentence when it failed to sentence appellee to a minimum of ninety (90) days of imprisonment for his violation of 75 Pa.C.S.A. § 1543(b), we must decide whether to remand for resentencing or permit the illegal sentence to stand. I believe that guidance for resolving this question is found in our Supreme Court’s decision of Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991). Therein, Kriston was transferred by the prison warden into an electronic home confinement program to serve the time remaining on his mandatory sentence of “imprisonment” for his second driving under the influence conviction. When Kriston sought parole after expiration of his mandatory minimum sentence of thirty (30) days, the lower court denied his request on the grounds that only ten of those days were actually served in prison. Although the Supreme Court concluded that electronic home confinement does not qualify as “imprisonment”, our high court nevertheless granted Kriston credit for the time he spent in home confinement because “denying [Kriston] credit for time served in home monitoring would constitute a manifest injustice.” Kriston, 588 A.2d at 901 (Emphasis added); see also, Jacobs v. Robinson, 49 Pa.Cmwlth. 194, 410 A.2d 959 (1980) (convict released on clerical error given credit towards minimum sentence for time spend while released); cf, Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991) (defendant given credit towards sentence of “imprisonment” for time spent in a voluntary inpatient rehabilitation program).
Instantly, appellee was specifically sentenced by the lower court to home confinement, rather than prison, for violating 75 Pa.C.S.A. § 1543(b). Both parties agree that appellee has served his ninety (90) days of home confinement. Thus, I submit that ap-pellee’s situation is analogous to that in Kri-ston, supra, and denying appellee credit for time he has already served in home confinement towards his mandatory minimum sentence of “imprisonment” would, as in Kri-ston, swpra, constitute manifest injustice. The majority would distinguish Kriston, supra, and Jacobs, supra, on the grounds that appellant was not released from prison because of clerical errors and/or did not serve his time in home confinement based on the assurances of a prison official. However, I would suggest appellant has an even stronger case than that presented in Kriston, supra, and Jacobs, supra, since appellant was serving his sentence of home confinement based on the assurance of the Court of Common Pleas of Luzerne County that it was a legal sentence. Accordingly, I would find that appellee has served his sentence for violating 75 Pa.C.S.A. § 1543(b), albeit an illegal sentence, and I would not remand for resentencing.1
. I would distinguish the present case from Commonwealth v. Smith, 528 Pa. 380, 598 A.2d 268 (1991), wherein, the Commonwealth claimed that the sentence was illegal due to the trial court's refusal to apply the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9714. In Smith, supra, the mandatory sentencing provision in question specifically provided that the Commonwealth could appeal a sentencing court’s refusal to apply the mandatory sentencing provision. 42 Pa.C.S.A. § 9714(e). Thus, in Smith, supra, there was not a violation of the Double Jeopardy Clause of the United States Constitution or the Pennsylvania Constitution, since a more severe sentence may be imposed on remand where a statute specifically authorizes an increased sentence following an appeal. Smith, 598 A.2d at 275, citing, United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). However, instantly, the statute in question, 75 Pa.C.S.A. § 1543(b), does not specifically provide for an appeal by the Commonwealth when the court refuses to impose the mandatory sentence and a subsequent increase sentence after a successful appeal.