dissenting:
One convicted of a public offense should be granted credit for time served in jail prior to conviction and for time spent in jail between his release from prison and the imposition of a new sentence. Fairness points inevitably to this conclusion. An accused is presumed innocent until proven guilty. When credit is not allowed this presumption is given a diminished significance. Moreover, he is constitutionally entitled to release on bail except when charged with a capital offense where the proof is evident or the presumption great. Nev. Const. art. 1, § 7; Ex parte Wheeler, 81 Nev. 495, 406 P.2d 713 (1965). A failure to grant credit invidiously discriminates between those who can furnish bail and those who cannot. Cf. Griffin v. Illinois, 351 U.S. 12 (1956); Anders v. California, 386 U.S. 738 (1967). Pretrial freedom accommodates the presumption of innocence and prevents the infliction of punishment before guilt is established. These fundamental concepts are denied when credit is refused.
Today’s opinion suggests that if credit is to be given the legislature must be the donor; that the court cannot be concerned since neither our state nor the federal constitution bears *545upon the problem. That contention was presented in Summers v. Warden, 84 Nev. 326, 440 P.2d 388 (1968), and rejected by this court. It should be rejected once more in this case. The issue is one of constitutional dimension. We need not await legislative action.
In Summers, supra, we ruled that the due process and equal protection clauses of the federal constitution and the due process clause of our state constitution require that a prisoner serving a valid sentence be given credit for time served under a prior void conviction based upon the same acts. Although the credit sought in the Summers case has been given this appellant, the full benefit of the reasoning underlying that decision has been denied him. His confinement, all of it, has been by reason of the offense for which he is now serving sentence. Every moment of that confinement is punishment for that offense. Any other view is unrealistic and denies the truth. This was the essence of Summers, and it applies with equal force to the present case.1
A distinguished committee of the American Bar Association on Minimal Standards for Criminal Justice recommends:
“(a) Credit against the maximum term and any minimum term should be given to a defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. This should specifically include credit for time spent in custody prior to trial, during trial, pending sentence, pending the resolution of an appeal, and prior to arrival at the institution to which the defendant has been committed.
“(b) Credit against the maximum term and any minimum term should be given to a defendant for all time spent in custody under a prior sentence if he is later re-prosecuted and re-sentenced for the same offense or for another offense based on the same conduct. In the case of such a re-prosecution, this should include credit in accordance with subsection (a) for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same conduct.
“(c) If a defendant is serving multiple sentences, and if one of the sentences is set aside as a result of direct or collateral attack, credit against the maximum term and any minimum term of the remaining sentences should be given for all time served since the commission of the offenses on which the sentences were based.
“(d) If the defendant is arrested on one charge and later prosecuted on another charge growing out of conduct which occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution should be given for all time spent in custody under the former charge which has not been credited against another sentence.” Sec. 3.6, p. 186-187, Tentative Draft-Standards Relating to Sentencing Alternatives and Procedures (December 1967).