(concurring in part; dissenting in part). I would respectfully dissent from that portion of the majority opinion which determines that under the particular facts of this case the defendant is entitled to have his sentence reduced by a period of time equal to his preconviction incarceration.
November 8, 1970, at 7 a.m., a retired man was robbed at knife point by two assailants while occupying a downstairs flat. The two men then proceeded to an upstairs flat. There they found a young woman in bed. They gagged, tortured and raped her.
November 10, 1970, the defendant was arrested for armed robbery and rape, and bond was set as described in the majority opinion. Defendant was incarcerated from the time of his arrest until his trial in September, *7031971. The cases were consolidated for trial. Trial was to a jury which returned verdicts of guilty to both charges.
The maximum sentence for each of the convictions is thirty years. At the time of pronouncing the judgment of conviction, trial counsel brought the matter of defendant’s preconvietion incarceration to the attention of the trial judge. Because of defendant’s conviction of rape, contrary to sec. 944.01 (1), Stats., it was necessary for the trial judge to commit the defendant to the department of health and social services for examination under the Sex Crimes Law, sec. 975.01. The trial judge made no final judgment as to the consecutive feature of sentencing pending the results of the sec. 975.01 examination. However, the trial judge did observe, after a review of the facts, that:
“I will consider that my conscience will be satisfied and I will feel completely justified, without any qualms, in imposing here the maximum and also consecutive sentences.”
December, 1971, after the presentence examination, the defendant was returned to court for sentencing. In behalf of the defendant, his counsel again argued for concurrent sentences and brought to the court’s attention the preconviction incarceration of the defendant. In imposing sentence, the trial judge recognized both of these factors, as well as others, and stated “. . . Far be it from me to say he doesn’t deserve both consecutively . . . .” The trial judge ultimately decided to leave the matter of defendant’s parole to the authorities “... who will be in a better position that I am to observe him,” and imposed a thirty-year sentence on each count, sentences to run concurrently.
The defendant was convicted of two felonies by the same jury on the same day in a consolidated trial and with sentences later imposed on both charges by the trial judge at one hearing. On this record and under these *704circumstances, it seems abundantly clear that the trial judge, the defendant, defendant’s counsel, and all involved, realized that the maximum incarceration that could have been imposed was sixty years.
Now, three and one-half years later, the majority of the court concludes that the thirty-year concurrent sentences imposed for the two convictions constituted the maximum sentence that could have been imposed. Thus, says the majority of the court, because he was incarcerated 822 days before conviction due to his inability to provide bail, sentence must be reduced to twenty-nine years and forty-three days. This result is based upon the grounds of equal protection adopted by this court in Byrd v. State (1974), 65 Wis. 2d 415, 222 N. W. 2d 696, and restated in State v. Seals (1974), 65 Wis. 2d 434, 223 N. W. 2d 158. I am unable to accept such reasoning.
In Byrd, supra, the defendant did in fact receive two consecutive maximum sentences. Equal protection, therefore, dictated entitlement to a sentence reduction for preconviction incarceration because his financial inability to post bail extended his incarceration beyond the maximum provided by law.
Both Byrd, supra, and the instant opinion illogically permit a reduction for incarceration before bail is set; a time when no person, regardless of financial ability, could obtain freedom.
In addition, the instant majority opinion requires a reduction in sentence even where the defendant did not receive sentences, which added to the preconviction incarceration equaled or exceeded the total period of incarceration that could have been given to a person who was able to produce bail. If the defendant had been able to provide bond he could have been sentenced to two consecutive terms of thirty years each for a total of sixty years. However, the majority of the court finds that because he could not provide bail and the trial judge chose to impose concurrent sentences, the maximum sen*705tence which could be imposed was twenty-nine years, forty-three days on each of the two counts. I would opine that a defendant, who was able to raise bail and who received a sixty-year sentence, would be no more impressed with the argument that this defendant is denied equal protection unless his concurrent sentences are reduced to twenty-nine years, forty-three days on each offense, than is this writer. It would apparently make no difference to the majority view if the trial judge made the sentences concurrent rather than consecutive in express recognition of the defendant’s preconviction incarceration.
I would also observe that financial ability is a relative concept which becomes significant only in relation to the amount of bail set by the trial court. Regardless of financial ability, for most people, bail can be set in an amount which will prevent release or low enough to permit release. Thus, a trial judge in his discretion can release even one who is totally indigent on his own recognizance.
In State v. Seals, supra, page 436, referring to Byrd, supra, it is stated that this court rejected the holding of those federal district courts 1 requiring an automatic offset for time spent in jail before sentence is imposed. Instead, Seals says of Byrd, the rule adopted limited entitlement “(1) to time spent in custody before conviction, and (2) to cases where such time, added to the sentence imposed, exceeds the statutory maximum punishment.” Seals, supra, page 486.
When multiple sentences are concurrently imposed and concurrently to be served, the writer sees as the essential question, whether the time the prisoner spent in custody prior to trial when added to the sentences to be served totals more than the statutory maximum incarceration *706for the crimes involved. The limited entitlement to credit under Byrd, supra, page 424, was based on a North Carolina federal district court decision, Culp v. Bounds (D. C. N. C. 1971), 325 Fed. Supp. 416. Culp was founded upon the proposition that under the circumstances therein considered, the failure to give credit for preconviction time in custody violated the equal protection clause of the fourteenth amendment when the statutory maximum sentence was imposed. By making the. two sentences concurrent, the trial judge in the ease before us gave half the penalty that could have been imposed. The instant case can be distinguished from Hook v. Arizona (9th Cir. 1974), 496 Fed. 2d 1172, because here, on two occasions the trial judge took into consideration the time spent in custody prior to trial when he imposed the sentence.
The equal protection basis adopted in Byrd, supra, pages 424, 425, quoting Culp, supra, equates pretrial detention with punishment and holds that those who are unable to raise bail are subjected to additional punishment compared to those who can and do post bail. Thus, under the equal protection approach, we deal not with where, when and how the sentence is served but with the fact of maximum penalty or punishment. The equal protection concern is that the indigent might be subject to greater maximum incarceration than one who is financially able to post bail. A valid equal protection concern is present where the maximum sentences are made to run consecutively. It is not present in multiple maximum sentence situations where sentences are made to run concurrently. In the case before us, with the two sentences running concurrently, the defendant was sentenced for a period of thirty years, plus the 323 days he was in custody prior to conviction, or a little more than one-half the total legislatively authorized maximum incarceration. Under these circumstances and under both Byrd, supra, and Seals, supra, the time spent in custody before conviction *707when added to the sentences imposed, did not exceed the statutory maximum punishment.
The defendant here claims entitlement to credit for time spent in custody during a presentence examination pursuant to sec. 975.01, Stats., following his conviction of the crime of rape. This time in custody did not involve this defendant’s inability to'post bail. It was time spent in custody following his conviction and was not time spent in custody before conviction. The writer concurs with the majority holding that, under the Byrd, supra, rule as defined in Seals, supra, the defendant was not entitled to credit for time spent in custody during such a presentence examination.
The writer would affirm.
I am authorized to state that Mr. Justice Hanley and Mr. Justice Robert W. Hansen join in this opinion, concurring in part, dissenting in part.
White v. Gilligan (D. C. Ohio 1972), 351 Fed. Supp. 1012, 1014. See also: Monsour v. Gray (D. C. Wis. 1973), 375 Fed. Supp. 786 and Taylor v. Gray (D. C. Wis. 1974), 375 Fed. Supp. 790.