dissenting:
The record discloses these facts: On April 22, 1968, Durham County officers arrested William Alexander Walker under the authority of a warrant charging assault with intent to commit rape. At the preliminary hearing on May 7, 1968, the court found probable cause and ordered the defendant held for Grand Jury action. In default of bond, the defendant was committed to jail.
On June 13, 1968, the defendant was able to post bond. The following day, the Superior Court committed him to Cherry Hospital for psychiatric evaluation. At the end of the period of commitment (60 days) the authorities found the defendant was without psychosis and released him on his original bond.
On November 20, 1968, the defendant was tried on an indictment charging assault with intent to commit rape. The jury returned a guilty verdict. The court imposed a sentence of 5 to 7 years in prison and ordered the defendant in custody for the service of the sentence. Although the defendant gave notice of his intention to appeal, he remained in custody under the sentence until February 4, 1969, when he was able to post bond and be at liberty pending decision on his appeal.
The Court of Appeals, on April 30, 1969 (4 N.C. App. 478, 167 S.E. 2d 18) reversed the conviction, holding the evidence was insufficient to support the charge of assault with intent to commit rape. The court, however, concluded the evidence was sufficient to go to the jury on a lesser included offense and remanded the case to the Superior Court of Durham County for trial on the charge of assault on a female by a male person.
At the September, 1969 Session, Durham Superior Court, the defendant entered a nolo contendere plea to the misdemeanor charge. The court imposed a prison sentence of not less than three nor more than six months (the latter the maximum for the offense). “Counsel for the defendant moved to set aside the *408judgment and excepted to the sentence on the ground that the defendant was entitled to have the time spent in detainment credited on the sentence imposed.” The trial court denied the motion. The defendant again appealed.
The Court of Appeals (7 N.C. App. 548, 172 S.E. 2d 881) found no error in the judgment and sentence, and thus denied the defendant’s claim of credit for any time served prior to the last sentence, citing as authority State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28.
Many cases and statutes bearing on the questions here for review are cited and discussed in State v. Virgil, supra; State v. Weaver, 264 N.C. 681, 142 S.E. 2d 633, and in the decision of the Court of Appeals in this case. The correct rule fixing the amount of credit due for time previously served for the same unlawful conduct is succinctly stated in State v. Virgil, supra: “Thus North Carolina requires that credit be given for time served under a previous sentence for the same conduct but holds that a defendant is not entitled to credit for time spent in custody while awaiting trial.’’ (Emphasis added) The Court’s opinion in Virgil (in which this writer joined), after stating the rule correctly, perhaps unduly restricted its application by failing to distinguish between the status of a defendant who is in custody awaiting trial and one who is in custody under sentence after trial. The correct rule is stated in this Court’s unanimous opinion in State v. Weaver, supra: “From the pronouncement of judgment . . . until said judgment was vacated . . . defendant’s de facto status was that of a prisoner serving a sentence.” In Patton v. N.C., 381 F. 2d 636 (4th Circuit), the court, speaking of credit for time served, said: “ . . . (H) e shall not be finessed out of credit for time he was forced to serve under an invalid sentence.”
The opinion of the Court of Appeals that the defendant is not entitled to credit for the time spent in jail awaiting his first trial or in the hospital for psychiatric evaluation under the court’s order is correct. However, under the authorities, I think the defendant is entitled to credit on his misdemeanor sentence for the time he served under the felony conviction involving the same wrongful conduct. Both the State and the defendant were bound by the judgment in the felony conviction. In no sense could it be said the defendant was in custody awaiting trial. When the Court of Appeals reversed the felony conviction and remanded the cause to the Superior Court for trial of the mis*409demeanor, then the defendant was in custody awaiting trial. In my opinion the defendant is entitled to credit on the misdemeanor sentence for the time spent in custody under the felony sentence (November 20, 1968 until February 4, 1969). I am unable to agree with the Court’s decision which denies such credit.