dissenting in part.
While I agree with the majority that Fisher is entitled to credit *486for 35 days of jail time covering the period of April 15 through May 19, 1983,1 respectfully dissent from the failure to credit him with the 21 days bounded by May 20 and June 9, 1983. Fisher has specifically requested credit for the entire 56 days from April 15 through June 9,1983. The rationale upon which the majority relies in denying the additional 21 days’ credit is that “[a] defendant who had wrongly served a prison sentence would then have license to commit a ‘free’ crime or a crime with a diminished sentence.” People v. Fischer, 100 Ill. App. 3d 195, 201, 426 N.E.2d 965, 970 (1981). That the law of this state cannot tolerate such a scenario is beyond argument. However, allowing credit for the additional time in this peculiar, particular fact situation would not tread upon that policy, as will be noted below.
In Miller v. Cox, 443 F.2d 1019 (4th Cir. 1971), the fourth circuit distinguished three categories of defendants and computation of each defendant’s sentence. The first situation, where a conviction is set aside and the prisoner is retried and convicted of the same offense, is inapplicable here. “A second and distinct situation is presented where a prisoner serving consecutive sentences on several convictions succeeds in having one of the sentences invalidated after it has been fully or partially served.” Id. at 1020. This is the situation in the instant appeal. The third category includes an individual who, “after his conviction has been invalidated and he has regained his freedom, commits a new crime and receives a new sentence. The issue is then posed whether credit should be allowed on that sentence for time served on the prior invalidated conviction.” Id. at 1021. The majority’s reasoning addresses this third fact pattern.
The fourth circuit’s treatment of the third category matches that of the majority. Both would condemn the practice of allowing a prisoner to establish “ ‘a line of credit for future crimes.’ ” Id. at 1021.1 agree. However, I feel that the instant appeal involves circumstances factually distinct from the situation to which the majority’s rationale applies. This case involves the second category suggested in Miller v. Cox, supra. I would apply the fourth circuit’s reasoning and grant credit for the entire 56 days. “Common sense and fundamental fairness *487require that under such circumstances the state should not ignore the period of imprisonment under the invalid sentence when an appropriate remedy is so readily available.” Id. at 1021.
To allow Fisher credit for the 21 days served after sentencing on the invalid charge does not create a risk of allowing him a “free crime.” He was already in jail. The credit would be applied to a sentence Fisher is serving for a crime already committed at the time of his arrest on the invalid charge.
To deny Fisher the credit would be to punish him for violating a statute we have declared to be unconstitutional. This is one of those rare cases in which we can return to Fisher the days wrongfully exacted from him under an unconstitutional law. I believe that fundamental fairness requires that we do so.