dissenting:
Respectfully, but earnestly, I dissent from the Court’s decision embodied in the majority opinion. It is universally accepted that no man can be twice lawfully punished for the same offense. In that proposition I am in full agreement with the majority. I vigorously disagree, however, with its characterization of the failure to allow credit on the sentence for the time spent on parole as the imposition of multiple punishments for the same offense. Thus, I am in firm disagreement with the holding of the majority as expressed in Syllabus No. 2 of its opinion.
Where in the instant case is there a second punishment for the same offense? There is none. The petitioner was originally sentenced to confinement for a term of from one to ten years. Although, by reason of our “good time” statute and parole laws, one seldom serves the maximum sentence, he certainly is subject to the maximum sentence provided for the offense of which he was convicted. When one is released on parole and violates the terms thereof, our statute provides that he may be required “to serve in prison the remainder or any portion of his maximum sentence for which, at the time of his release, he was subject to imprisonment ...”. *692W. Va. Code, 62-12-19. This does not constitute a multiple punishment for the same offense but is a continuation of the original indeterminate sentence. It cannot, therefore, be a violation of the Double Jeopardy Clause of Article III, Section 5 of the West Virginia Constitution.
The language of the foregoing statute is clear and unambiguous and is not subject to interpretation. The clear mandate — that time out of custody on parole, should parole be revoked, shall not be credited — shall be applied unless constitutionally inhibited. Strangely, the majority expressly declines to hold W. Va. Code, 62-12-19 unconstitutional. Yet, it holds that “in the future it is constitutionally mandated that credit be given.” n. 18 maj. opn. If the statute is not held to be unconstitutional in the instant case, its clear provisions apply, the petitioner is not entitled to credit for the time on parole and the writ of habeas corpus should be denied.
Significantly, the majority fails to cite any case, in any jurisdiction, which holds that one is entitled to credit for time (out of custody) on parole; nor does my research reveal such case. The only case cited for that proposition by the petitioner, Howie v. Byrd, 396 Fed. Supp. 117 (D. C. W.D.N.C. 1975) was reversed in 532 Fed. 2d 750 (4th Cir. 1976). North Carolina v. Pearce, 395 U.S. 711 (1969), cited in the majority opinion lends no support to the decision. In that case the defendant received a new trial and was awarded a greater sentence; the trial court did not give him credit for time served on the first sentence. Of course, he is entitled to such credit as mandated by the Supreme Court. Also, Ex Parte Lange, 85 U.S. 163, cited by the majority for the proposition that “no man can be twice lawfully punished for the same offense”, lends no support to Syllabus No. 2. Certainly, the above quote is universally accepted law, with which I am in full agreement.
In Hall v. Bostic, 529 F.2d 990 (4th Cir. 1975, cert. denied 1976), the same court that reversed the Howie case, the following language is found:
*693“There is nothing unusual in the denial by North Carolina law of credit for probation or parole time against a prison sentence. It is common to both state and federal probation and parole systems. [Footnote omitted] The validity of such denial has been universally recognized both in federal and state decisions.”
Although the majority opinion cites three cases as being critical of the failure to allow credit for time served on parole it is interesting that those cases did not take that step. Further, it is also interesting that as pointed out in the majority opinion, “A number of states have solved the problem by enacting statutes which specifically require credit for time served on parole upon its revocation.” I fully agree that such provision may be effected by statute. However, when a statute such as ours, W. Va. Code, 62-12-19 specifically precludes the allowance of such credit, and it is not declared to be unconstitutional, I fail to see how it can be ignored.
The apparent basis for the majority view is reflected by citation of law review and other articles which purport to demonstrate that one on parole is under restrictions and is therefore not free; therefore, asserts the majority, the parolee is still serving his sentence while on parole. The rationale that “time spent serving a sentence does not depend on the manner or location in which it is served”, simply stated is not realistic. Ask one who is serving in a penitentiary, in a tiny barred cell, if he would just as well be there as at home with his family, even though in the latter situation he is under certain restrictions which require him to obey the law.
As stated in Hall v. Bostic, supra:
A person does not serve a prison sentence while on probation or parole any more than he does while free on bail. In both instances, there are certain restrictions generally on the person’s movements but the person’s condition, as the Court observed in Morrissey v. Brewer, (1972) 408 U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484 *694is ‘very different from that of confinement in a prison.’ ”
Parole is a reformatory measure. It is designed to fulfill the humane goal of rehabilitating the prisoner by offering him conditional freedom as an alternative to confinement in prison. Should he fail to comply with the conditions of such freedom, then he is subject to the sentence originally imposed — not an additional sentence for the same offense. Were this not so the incentive for granting parole would be nullified. See, Zerbst v. Kidwell, 304 U.S. 359 (1938); Anderson v. Corall, 263 U.S. 193 (1923); and, United States ex rel. Demarois v. Farrell, 87 F.2d 957 (8th Cir. 1939).
Being of the firm opinion, which I believe is unanimously supported by judicial decision in the United States, that the refusal to allow credit on the principal sentence for time spent on parole does not impose multiple punishments for the same offense, I would deny the writ of habeas corpus.