concurring in part and dissenting in part.
I dissent only with respect to the question of whether appellant is entitled to credit for jail time. Larry Darnell Thomas, petitioner here, spent a total of 516 days in preconviction detention. During this time petitioner apparently failed to request a bail hearing. However, as the majority opinion points out, in all likelihood petitioner would not have been eligible for bail due to the capital nature of the offense. Petitioner pleaded guilty to first-degree murder, § 559.010, RSMo 1959, and assault with intent to kill with malice, § 559.180, RSMo 1959. He was then sentenced to life imprisonment on each count (sentences to run concurrently), life being the maximum period of incarceration authorized by the legislature. Pursuant to the discretion granted by § 546.615.1, RSMo 1969, the trial court refused to grant petitioner credit on his sentence for his precon-viction jail time.
Requiring petitioner to serve the maximum sentence, in addition to jail time accumulated on this charge prior to conviction, subjects petitioner to a sentence in excess of that authorized by the legislature as punishment for this crime and in effect *797constitutes multiple punishment in violation of the double jeopardy clause of the Fifth Amendment which is applicable to the States through the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Pearce, although concerned primarily with crediting time served on an original conviction against the sentence imposed after re-conviction of a defendant, stated at 718, 89 S.Ct. at 2077.
“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.
Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed.”
Petitioner was deprived of his liberty and held in custody for 516 days, presumably without right to bail. (See majority opinion at p. 795.) Such pretrial detention is nothing less than punishment. Time spent in the county jail is at least as restrictive and punitive as time spent in any other kind of penal institution. See Brinkman v. Shubert, 422 F.Supp. 820, (W.D.Wis.1976). See also Carey v. Garrison, 452 F.Supp. 485 (W.D.N.C.1978). Once petitioner has been sentenced to the maximum period of incarceration authorized by the legislature, failure to credit him these 516 days means that petitioner is essentially sentenced to life plus 516 days on these charges. The time in excess of the maximum authorized sentence constitutes multiple punishment for the same offense in violation of the double jeopardy clause of the Fifth Amendment. Therefore, where preconviction confinement, in addition to the sentence imposed, exceeds the maximum sentence authorized as punishment by the legislature, credit for jail time is constitutionally required. See Brinkman v. Shubert, supra; Taylor v. Gray, 375 F.Supp. 790 (E.D.Wis.1974); Culp v. Bounds, 325 F.Supp. 416 (W.D.N.C.1971).
Additionally, the refusal of the trial court to credit jail time in this case violates the separation of powers clause of the Missouri Constitution. Mo.Const., art. 2, § 1. The trial court’s failure to credit petitioner’s jail time, thereby subjecting petitioner to a greater period of confinement than that authorized by the legislature as punishment for these crimes, violates the separation of powers clause, for it is solely within the power of the Missouri legislature to define criminal offenses and to prescribe the punishments to be imposed.1
The majority would apparently find that the discretionary nature of § 546.615.1 confers the approval of the legislature on the confinement of petitioner in excess of the maximum. I disagree. Nothing in § 546.-615.1, RSMo 1969, indicates that the legislature intended to authorize or allow a trial judge to exercise his discretion so as to extend a defendant’s total confinement on a charge in excess of the statutory maximum.
Preconviction detention is admittedly not part of a sentence imposed. However, pre-conviction time is now routinely. credited where an indigent remains incarcerated by reason of his inability to make bail. See Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 *798(1970). In my opinion, it makes no difference whether preconviction time is served due to the defendant’s indigency or not. Preconviction incarceration is a deprivation of liberty pure and simple and, particularly where the sentence imposed is the maximum, the time must be credited against the defendant’s sentence.
. The recent United States Supreme Court decision in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), is consistent with this reasoning. The Supreme Court in Whalen held that the double jeopardy clause of the Fifth Amendment precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so. The Court found that the guarantee against double jeopardy embodies the principle of separation of powers. Specifically, the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty, resides wholly with the Congress. Where a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty.