dissenting:
I respectfully dissent.
Credit for presentence confinement in the circumstances of this case is a matter of constitutional right, and the defendant’s request for credit should have been granted by the trial court.
When, as here, a defendant is incarcerated before sentence because he cannot afford bail and, subsequently, he receives a maximum sentence without credit for his presentence confinement, he is serving a sentence which a richer person would not serve. This violates the basic principle enunciated in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). There, the United States Supreme Court held that a class of people could not be subject to a conviction beyond the statutory maximum solely on the basis of indigency. See also Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971).
The basic premise of these cases is that the burden of incarceration falls disproportionately upon the indigent, violating equal protection. Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974); In re Young, 32 Cal.App.3d 68, 107 Cal. Rptr. 915 (1973); Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973); King v. Wyrick, 516 F.2d 321 (8th Cir. 1975); Johnson v. Prast, 548 F.2d 699 (7th Cir. 1977). To prevent disproportionate sentences served by indigents, credit for time served should be given in all cases where there is presentence incarceration for failure to make bond. King v. Wyrick, supra; Johnson v. Prast, supra.
Therefore, I would make the rule absolute and remand the case to the district court to grant credit for presentence confinement.