In June, 1968, Glenn Valentine was indicted on a charge of first degree murder and two charges of first degree robbery with a dangerous and deadly weapon. He made no request that bail be fixed and hence remained in jail until he was sentenced on January 13, 1969. On that date he entered pleas of guilty to second degree murder and the two robbery charges. The court accepted the recommendation of the State that he be sentenced to 12 years imprisonment on each charge, the sentences to run concurrently. Immediately thereafter the following occurred:
MR. WENDT: Your Honor, the defendant will respectfully request that his jail time be allowed.
THE COURT: In view of the seriousness of these three matters, the jail time will be denied. So ordered.
Valentine filed a pro se motion to vacate the judgments under Rule 27.26 in September, 1970, assigning four grounds therefor. Later counsel was appointed for movant and an amended motion was filed which abandoned the original grounds and alleged only that the failure to allow credit for time spent in jail because he was financially unable to make bail violated the equal protection clause of the U.S. Constitution. He sought allowance of such credit.
The trial court overruled the amended motion. Movant appealed to the Court of Appeals, St. Louis District. That court *559adopted an opinion affirming the judgment. However, deeming its opinion to be in conflict with the opinion of the Court of Appeals, Springfield District, in the case of Shepherd v. State, Mo.App., 529 S.W.2d 943 (1975) the case was transferred to this court for reexamination of the existing law. We will determine the case here the same as on original appeal. Art. V, Sec. 10, Mo.Const., V.A.M.S.
The allowance of jail time is governed by statute. Section 546.615, RSMo 1959, in effect at the time movant was sentenced read as follows: “When a person has been convicted of a criminal offense in this state . The time spent by him in prison or jail prior to his conviction and the date on which sentence is pronounced may, in the discretion of the judge pronouncing sentence, be calculated as a part of the term of the sentence imposed upon him.” That section was amended in 1971 to provide that, “A person convicted of a felony in this state shall receive as credit toward service of the sentence imposed all time spent by him in prison or jail both awaiting trial and pending transfer to the department of corrections.” The amended section would not have retroactive effect and therefore has no application to the question before us. State v. Whiteaker, 499 S.W.2d 412 (Mo.1973). It is obvious that if the original statute is taken literally the trial court had the discretionary duty to determine whether jail time should be allowed and we see no indication that the court abused its discretion in denying the request.
As stated, however, movant contends that the discretionary provision of the statute violates the equal protection clause of the Fourteenth Amendment in that it discriminates against the poor who cannot raise bond. This point was presented to this court and ruled adversely to the defendant in the case of State v. Crockrell, 470 S.W.2d 507 (Mo.1971). This court reaffirmed the Crockrell ruling in Gillis v. Swenson, 495 S.W.2d 658[3] (Mo.1973). Prior to the decision in Shepherd, supra, all three districts of the court of appeals had adopted opinions that followed the Crockrell ruling. See Meeks v. State, 512 S.W.2d 215 (Mo.App. Springfield, 1974), King v. State, 510 S.W.2d 747 (Mo.App. St. Louis, 1974) and Neighbors v. State, 515 S.W.2d 792 (Mo. App. Kansas City, 1974).
In 1975 the habeas corpus case of King v. Wyrick (8th Cir.) 516 F.2d 321, was decided.. Therein, although defendant was held on a first degree murder charge bail was fixed at $8,000 which defendant was unable to give because of indigency. When he pleaded guilty to murder second, the trial court refused to allow credit for jail time on the 12 year sentence. The federal appeals court held that the denial of jail time credit deprived King of equal protection and ordered that the credit be allowed.
Obviously, this court does not agree with the King decision. In addition to other reasons that have been expressed we have the view that the trial judge in fixing the length of sentence has often considered his mental, though unannounced, decision not to allow jail credit. In the instant case we think it likely that the judge considered such in his decision to accept the very lenient recommendation of the State of a 12 year sentence for what was, in fact, three capital offenses. The Springfield District of the Court of Appeals, however, evidently considered that it should follow the King decision and it accordingly did so, without discussion, in Shepherd, supra. The court in Shepherd was not required to follow King. See, Kraus v. Board of Education of City of Jennings, 492 S.W.2d 783[2] (Mo. 1973) and cases cited therein. It was required to follow the controlling decisions of this court. Art. V, Sec. 2, Mo.Const.
We base our decision in the case at bar, however, upon a different ground. Movant was charged with first degree murder. At the time his plea was entered the assistant circuit attorney stated facts which showed that movant was guilty of felony murder, which, as a matter of law, was then a capital offense. Movant agreed that the facts stated were true. Sec. 20, Art. 1, Mo.Const., provides, “That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident *560or the presumption great.” If movant had desired bail he should have filed an application and a hearing would have been held to determine whether the “evident proof” showed guilt of a capital offense. No such hearing was held but since movant later admitted his guilt of felony murder it is reasonable to assume that the State could have presented proof thereof. In that situation movant was not entitled to bail regardless of his financial resources. It follows that there could not have been any violation of the equal protection clause in this case and that cases such as King and Shepherd would have no application to the factual situation before us.
The judgment is affirmed.
MORGAN, HENLEY, FINCH and DON-NELLY, JJ., concur. SEILER, C. J., dissents in separate dissenting opinion filed. BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, C. J.