I am unable to agree with tbe “comment” in Division VII of the majority opinion relative to time spent in confinement by defendant with regard to the void judgment originally entered, and respectfully dissent.
I. I agree with the conclusion reached by the majority to the effect this defendant has not been subjected to double jeopardy. Since the initial judgment of conviction under section 713.3, Code, 1966, must be deemed null and void, defendant has actually been placed in jeopardy only once. See 2 Underhill’s Criminal Evidence, Fifth Ed., section 480, page 1168.
On the other hand, while the majority discusses and resolves the “double jeopardy” issue, it does not fully reach the matter ■of “double punishment”, here unavoidably involved. In this respect the record discloses defendant was incarcerated at least nine months in connection with the void judgment for which no credit was allowed him under the sentence imposed on the subsequent forgery charge. And the token recognition of the matter by a recommendation the Board of Parole take it into account when in due time defendant’s file comes up for parole consideration is totally insufficient. Stated otherwise, it appears to me the cursory treatment accorded by the majority to the matter of double punishment is constitutionally inadequate.
Touching on the subject at hand chapter 422, Acts of the Sixty-second General Assembly, amends chapter 791, Code, 1966, by adding thereto the following: “Whenever any person who has been confined to jail at any time prior to sentencing because of failure to furnish bail, is sentenced to the county jail, the court shall backdate the execution of judgment or mittimus a sufficient number of days to give such person credit upon any sentence imposed for the time already spent in jail.”
By the same legislative Act, Code section 246.38 was amended ■by striking the period in line eleven of that section and inserting in lieu thereof the following: “; provided, however, if a convict had been confined to a county jail or other correctional or mental institution at any time prior to sentencing, or after sentencing but prior to his case having been decided on appeal, because of failure to furnish bail or because of being charged with a nonbailable offense, he shall be given credit for such days *1176already served in jail upon the term of his sentence. The clerk of the district court of the county from which the convict was sentenced, shall certify to the warden the number of days so served.”
Admittedly these amendments do not go directly to the factual situation presented in the instant case. On the other hand they do demonstrate awareness on the part of the legislature of the problem here presented. Stated otherwise, it is now clear the declared public policy of the State of Iowa is to avoid the anathema of double punishment.
Dealing with this matter, 24B C.J.S., Criminal Law, section 1990, page 603, states: “The constitutional principle that no one • shall be put in jeopardy twice for the same offense, # * # is broad enough to mean that no one can lawfully be punished twice for the same offense; the one follows from the other, and the constitutional provisions are designed to protect accused from a double punishment as much as to protect him from two trials.”
From the foregoing it appears to me the majority approaches, if it does not reach, a conclusion violative of Amendment 5 to the United States Constitution.
Surely it is our function to recognize such important questions and not leave them to the discretion of the Board of Parole which may or may not accord recognition to any judicial recommendations.
I respectfully submit the trial judge, in sentencing defendant on the forgery charge, had not only the authority but was constitutionally required, notwithstanding our indeterminate sentence law, to accord defendant credit for time confined in lieu of bail prior to sentencing under the voided judgment, plus total time incarcerated pursuant to original sentence imposed, with full credit for earned good behavior, if any, while so incarcerated. In support hereof see Short v. United States, 120 U.S. App. D.C. 165, 344 F.2d 550, 553, and Rice v. Simpson, 274 F.Supp. 116, 119-123.
I would reverse and remand for entry or correction of judgement in accord with the views expressed above.
Becker, J., joins in this dissent.