Mark Gallup pleaded guilty on May 10, 1982, to the sale of a controlled substance, section 195.020, RSMo 1978. The court suspended imposition of a sentence to imprisonment for five years and placed the defendant on probation for five years. On May 10, 1983, the court revoked defendant’s probation and ordered execution of his prison term. On April 1, 1985, he was paroled with an April 1, 1988, release date. The Board of Probation and Parole subsequently amended its parole order to extend its authority over Gallup for an additional five years. See § 195.221, RSMo 1978 (repealed effective August 13, 1984). Gallup filed a declaratory judgment action to question application of the repealed statute to extend his release date. The trial court denied relief, and the court of appeals affirmed. Reversed.
Gallup asserts that the application of section 195.221 was conditioned upon his release on parole and cannot be used to extend his parole term after its repeal. The State contends that section 1.160, RSMo 1986, saves and preserves the additional parole term. The savings statute states that “no fine, penalty or forfeiture incurred ... at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment....” § 1.160. The question is whether the additional parole term constitutes a penalty which- attached as part of the sentence.
The Parole Board has considerable discretion in deciding whether to grant pa*436role. § 217.690, RSMo 1984, Green v. Black, 755 F.2d 687 (8th Cir.1985). The possibility of parole is conditioned upon several factors including the seriousness of the offense, Burnside v. White, 760 F.2d 217 (8th Cir.1985); the prisoner’s behavior while in prison and his prospects for reintegration into society. § 217.690. Under Missouri law the granting of a conditional order, such as parole, is not part of the trial nor is it in any way incident to it. State ex rel. Browning v. Kelly, 309 Mo. 465, 274 S.W. 731 (Mo. banc 1925); State v. Merk, 281 S.W.2d 607 (Mo.App.1955). The sentence which consists of confinement for a period of time or a fine constitutes the penalty. McCulley v. State, 486 S.W.2d 419 (Mo.1972). The additional parole term of section 195.221 does not constitute a penalty because it becomes effective only if the Board grants parole and has no effect on a prisoner’s eligibility for parole or the length of his sentence. Section 1.160 cannot save it for use against Gallup because the legislature repealed it before he was granted parole.
The United States Supreme Court has interpreted two parole statutes so as to require the application of the statute in effect when the sentence was imposed. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974) (saving the application of 26 U.S.C. § 7237(d) which made certain drug offenders ineligible for parole); Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (declaring a change in Florida’s method of accumulating credit towards parole a violation of the ex post facto provision of article I, section 10 of the U.S. Constitution). These cases do not control because in Marrero the Supreme Court interpreted federal statutes which differ from the Missouri statutes in question. The parole discussed in Marrero is more readily associated with the sentence because it completely eliminated the possibility of parole, whereas section 195.-221 would extend the term of the parole once it has been granted.
In Weaver and in Burnside v. White, 760 F.2d 217 (declaring that Missouri’s new parole statute, section 217.690, could not be applied retroactively to the detriment of those sentenced when section 549.261, RSMo 1978, was in effect), the federal courts found that changes in the parole statutes could not work to the detriment of a previously sentenced prisoner. The same reasoning cannot be applied here because the repeal of section 195.221 actually benefits Gallup and cannot therefore violate the ex post facto provision. Weaver, 450 U.S. at 33, 101 S.Ct. at 966.
The difference in the statutes interpreted by the federal courts, the manner in which the states had attempted to apply them and the precedent of Missouri cases on point persuade a determination that section 195.221 should not be applied to anyone paroled after its repeal August 13, 1984. The effect is that appellant may not be held on parole beyond the original release date, April 1, 1988.
The judgment is reversed with direction to recognize the April 1, 1988, release date.
BLACKMAR, WELLIVER, RENDLEN, JJ., and GAERTNER, Special Judge, concur. ROBERTSON, J., dissents in separate opinion. BILLINGS, C.J., dissents and concurs in separate dissenting opinion of ROBERTSON, J. DONNELLY, J., not sitting.