dissenting.
I dissent.1 The majority opinion correctly defines the dispositive issue in this case as whether the additional parole term mandated by Section 195.221, RSMo 1978 (repealed), is a penalty or punishment within the meaning of Section 1.160, which provides in pertinent part:
No offense committed and no fine, penalty or forfeiture incurred, or prosecu*437tion commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except ... (2) that if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense, the penalty or punishment shall be assessed according to the amendatory law.
Based on McCulley v. State, 486 S.W.2d 419 (Mo.1972), the majority concludes that the “sentence which consists of confinement for a period of time or a fine constitutes the penalty.” The majority then states that the “additional parole term of Section 195.221 does not constitute a penalty because it becomes effective only if the Board grants parole,” concluding that Section 1.160 “cannot save [Section 195.221] for use against Gallup because the legislature repealed it before he was granted parole.”
Contrary to the majority, however, I believe that the extended term of parole required by Section 195.221 is a penalty or a punishment within the meaning of Section 1.160.
McCulley, which provides the foundation for the majority’s conclusion, defines the word “sentence”; it does not give a meaning for “penalty.” The majority assumes that “sentence” and “penalty” are synonymous, each completely defining the other. While it is true, as McCulley holds, that a sentence is a penalty, it does not follow, as the majority seems to assume, that the sentence is the entire penalty.
“Penalty” is a word possessing a much broader meaning than “sentence.” A penalty is “the suffering in person, rights, or property which is annexed by law or judicial decision to the commission of a crime or public offense.” Webster's Third New International Dictionary (1966). Punishment is “the infliction of a penalty.” Id. Thus, the sentence imposed is a part of the penalty assessed; in this case a mandatory additional parole term is also part of the penalty. While on parole, the defendant is a constructive prisoner, subject to the restrictions and limitations on his person and rights imposed by the terms of his parole. State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, 58 (1946); 67 C.J.S. Pardon & Parole, sec. 57 (1978). The additional period of parole decreed in Section 195.221 is, therefore, a penalty or punishment, just as is the sentence imposed. McCulley does not support the majority’s conclusion; it is inapposite.
As for the second prong of the majority’s argument, the fact that the Parole Board maintains discretion to grant or deny parole does not alter the penal nature of Section 195.221. Under the statute, the conditions of the additional parole period are fixed at the time of the assessment of the penalty. State v. Grant, 79 Mo. 113, 117-132 (1883), overruled on other grounds, 337 Mo. 884, 87 S.W.2d 175 (1935); State v. Landrum, 127 Mo.App. 653, 106 S.W. 1111, 1112 (1908). The potential failure of the condition precedent — parole — does not change either the character or terms of the penalty imposed by the statute.
Having determined that Section 195.221 imposes a penalty, the final question is whether Section 1.160 applies in this case. Absent Section 195.221, the length of Gallup’s parole would have been governed by Section 217.730, RSMo Supp.1982. The latter section mandated the discharge from parole no later than the end of Gallup’s prison sentence, which would have been April 1,1988, as fixed by the original order of release. The first part of Section 1.160 requires that where an offense is committed before a statute is repealed, the punishment for the offense shall be “as if the provision had not been repealed,” subject to the statutory exception. The effect of this portion of Section 1.160 (without regard to the relevant exception contained in the statute) is to make the repealed Section 195.221 applicable to defendant’s parole and to mandate the extended parole period required by that section.
*438Section 1.160 goes on, however, to make an exception to the general rule. “[I]f the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense, the penalty or punishment shall be assessed according to the amendatory law.” Does this exception apply to the time of appellant’s release on parole, so that the less stringent Section 217.730 governs his parole term rather than the more stringent repealed Section 195.221? Or does the exception apply to the earlier time of his conviction, when Section 195.221 was still in effect?
Ex parte Wilson, 330 Mo. 230, 48 S.W.2d 919 (Mo. banc 1932), interprets Section 4468, RSMo 1929, the predecessor to Section 1.160 as follows: “[T]he meaning of the exception to the general provision is ... clear when the exception is considered in connection with the general provision; that is, that any offender against the criminal laws of this state shall have the benefit of any reduction in the punishment prescribed for the offense by an amendment of the law creating the offense which becomes effective after the commission of the offense but before the entry of the judgment and sentence.” Wilson, 48 S.W.2d at 920 (emphasis added).
I see no reason to depart from the teaching of Wilson. The exception in Section 1.160 applies to the time of the judgment of conviction (or perhaps to the time of sentencing — it is not necessary in this case to discuss which time governs, since both of them occurred before the statute’s repeal) when the penalty is assessed, and not to the time of release on parole. Had the repeal of the statute taken effect before defendant’s sentencing (or his conviction), Section 195.221 would not have governed the length of the later parole; the parole term would have been governed instead by Section 217.730, RSMo Supp.1982. Because Section 195.221 was in effect at the time of Gallup’s penalty assessment, the exception in Section 1.160 does not apply.
I dissent.
. Portions of this dissent are the work of the Honorable Don W. Kennedy, who authored the unanimous opinion of the Court of Appeals, Western District, affirming the trial court. Judge Kennedy’s work is acknowledged without further attribution.