(dissenting):
I must dissent from the majority’s conclusion as to the statutory “outer limits of incarceration” where county jail time is imposed as a condition of probation and .because of this disagreement, I must also dissent from the failure of the majority to allow credit for this probationary jail time. As to the first two issues raised by the defendant and disposed of by the majority, I concur.
It is apparent that the majority’s opinion, at least initially, denying pre-probation incarceration time credit and denying credit for time spent while incarcerated in the county jail as a condition of probation, is bottomed on the premise, in the words of the majority, “that the Arizona statutes contemplate that the ‘outer limits of incarceration, as a part of the statutory punishment scheme is a total of eleven years — a maximum of one year in the county jail imposed as a condition of probation, plus a maximum of 10 years in the Arizona State Prison.”
Turning first to the denial of pre-proba-tionary incarceration credit time, I simply cannot find the statutory contemplation espoused by the majority. A.R.S. § 36-1002, the statute under which the defendant was originally sentenced, in part provides that one who unlawfully possesses a narcotic drug:
“shall be punished by imprisonment in the state prison for not less than two nor more than ten years, and shall not be eligible for release upon completion of sentence, or on parole, or on any other basis until he has served not less than two years in prison.”
Rather than being sentenced to the Arizona State Prison for a maximum of ten years, as allowed under this statute, the defendant was placed on probation under A. R.S. § 13-1657. Subsection (A)(1) of this statute provides:
“The court may suspend the imposing of sentence and may direct that the suspension continue for such period of time, not exceeding the maximum term of sentence which may be imposed, and upon such terms and conditions as the court determines, and shall place such person on probation, under the charge and supervision of the probation officer of the court during such suspension. One of the conditions imposed may be incarceration in the county jail for a specific period not to exceed one year.” (emphasis added)
*452This statute clearly indicates that the maximum time this defendant could have been placed on probation was a total period of ten years. It is, in my opinion, equally clear that the one year possible county jail time is a condition of that probation and thus of necessity must be considered, as a component of, rather than an addition to, the maximum time probation may be continued. In this regard, I do not believe that the trial court can properly put the defendant on probation for 11 years under this statute, one year being spent in the county jail, and yet this is a logical conclusion to be drawn from the majority opinion.
Admittedly, the majority draws the additional year of incarceration time where probation is granted from the language of A.R.S. § 13-1657(C), which provides: “Upon the revocation and termination of the probation, the court may, if the sentence has been suspended, pronounce sentence at any time after the suspension of the sentence within the longest period [of, time} for which the defendant might have been sentenced . . . .”
When considering the legislative history of this section I am unable to draw the legislative intent to increase the amount of incarceration time drawn by the majority. The underlined portion of A.R.S. § 13-1657 appears in the 1939 code in § 44 — 2229 ACA and was carried forward to the 1956 code. At that time incarceration in the county jail as a condition of probation was not allowed. See, State v. Vanmeter, 7 Ariz.App. 422, 440 P.2d 58 (1968). There was no question that the “outer-limits of incarceration” at that time, even if probation was granted, could not exceed the statutory maximum set forth by the legislature. In 1970, and apparently in response to the holding in Vanmeter, supra, the legislature empowered the court, as a condition of probation, to exact county jail incarceration. In my opinion, this legislative grant of power was merely an attempt to place in the hands of the trial court, additional options in handling the criminal who is not entitled to clear probation, but is also not entitled to state prison incarceration. I do not believe the legislature intended, by giving this previously unavailable option to the sentencing court, to change the previous law as to the amount of time the defendant must spend behind bars.
Aside from this lack, in my opinion, of a legislative scheme to make the “outer limits of incarceration” eleven years rather than the statutorily mandated ten years, I am concerned that the majority may have created, without legislative direction, a crime known as “violation of probation”. It is clear that a person who is not placed on probation could under A.R.S. § 36-1002(A) be incarcerated only for a maximum of ten years. Yet under the majority opinion, a person who is placed on probation and is given one year in the county jail as a condition of that probation can be incarcerated for a a period of eleven years. Again, aside from the equal protection arguments which in my opinion are serious, what causes this enhanced incarceration? It appears to me that the sole act which brings about the possibility of enhanced time behind bars is that the probationer violated the terms of his probation. Thus, in my opinion, the probationer is being punished by incarceration time greater than that imposed upon a non-probationer because he violated the terms of his probation. This concept of a separate punishable offense being based upon the breach of probation has been rejected by all the cases cited by the majority. See, State v. Robbins, 110 Ariz. 284, 518 P.2d 107 (1974); State v. Pietsch, 109 Ariz. 261, 508 P.2d 337 (1973); State v. Crowder, 103 Ariz. 264, 440 P.2d 29 (1968). All of these cases likewise stand for the proposition that punishment flowing as a result of probation being revoked is not punishment flowing from the probationary breach, but is instead punishment on the original charge. I find no legislative intent, by merely making county jail time a condition of probation, to legislate away this case law and create a separate crime *453for breach of terms of probation justifying an enhanced incarceration period.
Lastly, by the majority opinion finding that the “outer limits of incarceration” be eleven years in this case, it has completely deprived this defendant of credit for pre-sentence incarceration, a credit he would, the majority agrees, be entitled to had he not been placed on probation. Thus the bottom line of the majority’s opinion on this point is that the defendant must spend ten years in the state prison without credit for pre-sentence incarceration, to me, a clear violation of our holding in State v. Sutton, 21 Ariz.App. 550, 521 P.2d 1008 (1974). This result is reached by the majority regardless of the fact that he would be entitled to this credit if he was a non-probationer and the fact that he will end up spending more than the statutory maximum of ten years merely because he was indigent.
I would therefore hold as a minimum, that the statutory maximum punishment exacted for the crime by the legislature is ten years, not eleven years, and that the defendant is entitled to credit for pre-pro-bationary time spent in jail as a result of his indigency.
I would, however, not reach the issue of credit for pre-probationary incarceration, for, in my opinion, the defendant is entitled to credit for his entire stay in the county jail (where credit for pre-sentence incarceration was given) when he was subsequently, upon revocation of probation, sentenced to the maximum incarceration period. I reach this conclusion based upon the application of the Fifth Amendment to the United States Constitution guarantee against double punishment.
First, I am of the opinion that the Fifth Amendment to the United States Constitution guarantee against double jeopardy is not limited to prohibitions against being twice tried for the same offense, but also includes protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In discussing this issue, the Pearce court cited the landmark case of Ex parte Lange, 18 Wall. 163, 168, 21 L.Ed. 872:
“If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And . there has never been any doubt of [this rule’s] entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.
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“. . . [T]he constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being tried for it.” Id., at 173.
The Court went on to state:
“We think it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully ‘credited’ in imposing sentence upon a new conviction for the same offense. The constitutional violation is flagrantly apparent in a case involving the imposition of a maximum sentence after reconviction.
“Suppose for example, in a jurisdiction where the maximum allowable sentence for larceny is 10 years’ imprisonment, a man succeeds in getting his larcency conviction set aside after serving 3 years in prison. If, upon reconviction, he is given a 10-year sentence, then, quite clearly, he will have received multiple punishments for the same offense. For he will have been compelled to serve separate prison terms of 3 years and 10 years, although the maximum single punishment for that offense is 10 years’ imprisonment.
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“We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that *454punishments already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.”
Although in Pearce double punishment involved timé served on a prior, vacated sentence, my research discloses that the majority of cases have also extended it to include presentence detention where the maximum sentence is imposed, Taylor v. Gray, 375 F.Supp. 790 (E.D.Wis., 1974); Culp v. Bounds, 325 F.Supp. 416 (S.D.N. C.1971); Parker v. Bounds, 329 F.Supp. 1400 (E.D.N.C.1971) [contra: State v. Wills, 69 Wis.2d 489, 230 N.W.2d 827 (1975)], and it has also been extended to time spent in confinement while the defendant appealed a life sentence even though the state statutory provision denied such credit. Wilson v. North Carolina, 438 F.2d 284 (4th Cir. 1971).
I believe the rationale to be equally applicable to “punishment” in the form of incarceration exacted as a term of probation where upon revocation the maximum statutory sentence of imprisonment is imposed. In such a case multiple punishments for the same offense are exacted, for in this case the defendant will be compelled to serve the six months in jail as a result of probation and 10 years in prison while the statutory maximum single imprisonment punishment exacted for the offense is only 10 years. I do not intend to infer that punishment of a non-incarceration character is likewise entitled to “credit” where the maximum sentence is subsequently imposed. I am aware that probation is granted in numerous cases which impose restraints upon the liberty of the defendant and thus theoretically could be classified, as indicated by the majority, as “punishment”, such as restraint on travel, associations, indulging in particular non-criminal behavior, requiring reporting or testing, etc. In my opinion such non-incarceration restraints do not reach the level of incarceration “punishment” which calls into effect the double jeopardy clause of either the United States or Arizona Constitution.
Moreover, in my opinion, the double punishment aspects of double jeopardy only come into play where the single incarceration punishment exacted by the legislature is exceeded. For this reason, I would specifically hold that upon revocation of probation, time spent in jail as a condition of probation need not be credited, where the probation jail time plus the sentence imposed upon revocation does not exceed the maximum single incarceration punishment imposed by statute. See State v. Pena, 26 Ariz.App. 442, 549 P.2d 222 (filed May 6, 1976).
Having previously concluded that the punishment exacted upon revocation of probation is related solely to the original crime charged, the “punishment” of incarceration imposed as a condition of probation upon that same charge when added to the subsequent “punishment” of incarceration for that charge cannot constitutionally exceed the statutory maximum incarceration “punishment” for to do so results in double jeopardy, that is, punishing twice for the same crime in excess of the maximum punishment allowed by statute.
In reaching this result, I am cognizant of the recent cases of State v. Jameson, 112 Ariz. 315, 541 P.2d 912 (1975) and State v. Barnett, 112 Ariz. 212, 540 P.2d 684 (1975). These cases hold that a defendant is not entitled to credit for time spent in a county jail pursuant to the conditions of his probation when he is later sentenced after revocation. However, neither of these cases appears to involve statutory máximums being imposed upon revocation. Both cases rely on the comments to Rule 27.7 (d) which states:
“In imposing a sentence after probation has been revoked, the court shall take into consideration the time the probationer has been incarcerated as a result of the filing of the petition for revocation, as well as the period of incarceration between his initial arrest and the granting of probation, and may credit such time against the sentence imposed.”
This comment, like Rule 26.10(b)(2), Rules of Criminal Procedure, 17 A.R.S. which requires that at the time of pronouncement of judgment and sentence the Court shall *455“state that it has considered the time the defendant has spent in custody on the present charge”, both follow the policy consideration pronounced in Kennedy, that is,'that although presentence jail time need not be credited as a matter of right, it should be considered by the Court in passing sentence. These rules and comments are totally silent as to the holding in Sutton, supra, which makes it mandatory for the trial court to give credit for pre-sen-tence incarceration when the time of incarceration plus the sentence imposed exceeds the statutory maximum. For these reasons, in my opinion neither Jameson nor Barnett are dispositive of the case at bar.
I would therefore hold that where a defendant is placed on probation and as a condition thereof is required to serve time in the county jail, he must be credited with this time to the extent the total incarceration time imposed upon revocation of probation, plus the probationary jail time exceeds the maximum penalty permitted by statute.1
. Nothing in this dissent is meant to infer that when a defendant is given jail time as a condition of probation the Court is thereafter precluded from sentencing upon revocation of probation on a theory that such sentencing alone would amount to double punishment. As stated earlier, tlie punishment imposed in both instances flows from the same offense. It is only where the statutory maximum is exceeded that the double punishment clause is violated.