(concurring) — I concur with my colleagues’ adoption of the equitable doctrine of credit for time at liberty. I also concur that the doctrine is properly applied here and join the court in ordering that Michael Roach be granted day for day credit against his sentence for the time he was at liberty. However, because Roach’s knowledge of the State’s mistake was not an issue brought before us, the court had no occasion to consider the potential sweep of this doctrine. I write separately to urge adoption of a limiting principle in the future.
Those tried and convicted of crimes owe a debt to society. Society is entitled to have that debt paid. Credit for time erroneously at liberty is an equitable doctrine and should be applied only where equity demands its application.
I agree with the majority that a prisoner who contributed to the erroneous release, or who has not remained lawfully at liberty, is not entitled to relief under this equitable *39doctrine. I write separately to elaborate upon the analysis to be followed when determining whether a prisoner contributed to or attempted to correct the mistake. The doctrine should not be applied if the State can establish by clear, cogent, and convincing evidence that the prisoner either contributed to the error or knew of it and failed to call it to the attention of authorities.
Instructive is White v. Pearlman, 42 F.2d 788 (10th Cir. 1930). White, the warden, informed Pearlman, a prisoner, that he had served his sentence and was due for release. Pearlman correctly believed he had not completed his sentence, and told the warden there had been some mistake. Pearlman, 42 F.2d at 789. Pearlman’s concerns were brushed aside and he was effectively ejected from the penitentiary. Id. When the mistake was discovered, he voluntarily returned to serve the balance of his sentence, but sought credit for the time he was at liberty in a habeas corpus petition. The court granted his habeas petition, ruling:
where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole . . . his sentence continues to run while he is at liberty.
Id.
This rule properly balances the equities. A prisoner released without contributing fault, either because of ignorance or because of diligence in calling the government’s mistake to the attention of the responsible authorities, should not be effectively penalized by being required to return to prison to correct the government’s mistake. E.g., Brown v. Brittain, 773 P.2d 570, 574-75 (Colo. 1989); In re Messerschmidt, 104 Cal. App. 3d 514, 163 Cal. Rptr. 580, 581-82 (1980). Just as society is entitled to have the debt paid, the prisoner is entitled to pay his or her debt to society, “re-establish himself and live down his past.” Pearlman, 42 F.2d at 789.
Where it is clear that a prisoner had knowledge of a government mistake and made no effort to correct it, equity *40does not demand credit for time at liberty. However, making the defendant’s knowledge a central inquiry in every case would be unfair to defendants who are theoretically chargeable with knowledge of the terms and conditions of their sentence. Given our complex and ever changing sentencing regimes and the availability of earned release time, work release, paroles, pardons, and commutations, prisoners should be able to rely upon the authorities to calculate their sentences accurately. They should be able to rely upon prison officials when they are told they can leave. I would therefore put the burden upon the State to prove by clear, cogent, and convincing evidence, completely independent of sentencing hearings and documents, that the prisoner was aware at the time that he or she had been erroneously released, and yet remained silent.
To summarize, I suggest the following criteria and limitations. A prisoner erroneously released may seek application of the equitable doctrine of credit for time at liberty. First, I would apply the doctrine only when time in custody was interrupted — after the prisoner had commenced serving the sentence or sentences. Second, the prisoner’s hands must be clean to seek equitable relief, and therefore he or she must not have committed any criminal acts while erroneously at liberty which result in conviction. Finally, the prisoner is not entitled to credit for time served while at liberty if the State is able to prove, with evidence independent of the prisoner’s sentencing hearing or sentencing documents, that the prisoner knew of the mistake and failed to attempt to call it to the attention of the appropriate authorities.
Since the State has not raised the issue of whether Roach contributed to the error that caused his release, and since he remained lawfully at liberty, I respectfully concur.