Wilkie, J.
Two issues are presented on this appeal:
1. On resentencing may a defendant be given a harsher sentence than the one originally imposed ?
2. On resentencing was the defendant here given credit for time already served under the original sentence?
Increased Sentence on Resentencing.
The first issue raises a question of first impression in this court. Essentially, defendant’s argument is that the [465]*465imposition, or potential imposition, of a greater sentence upon one who successfully pursues a postconviction remedy resulting in resentencing, or in redetermination of guilt followed by resentencing, unconstitutionally inhibits the seeking of postconviction redress. Defendant argues that his right to challenge the proceedings that led to his conviction and sentence should not be conditioned upon his willingness to submit to the risk of an increased punishment over that which was previously imposed. The state public defender in his amicus curiae brief informs the court that it is the practice of his office to advise all clients on the possibility of an increased penalty if they are successful in their appeal. The defender believes that this possibility discourages many prisoners from challenging the legality of their convictions.
Recently, several courts have dealt with the issue before this court. While many of these cases involve situations in which the defendant has successfully appealed his original conviction, and upon reconviction has been resentenced, we see no good reason for distinguishing those cases from situations involving only resentencing.
A recent annotation at 12 A. L. R. 3d 978 points out that a numerical majority of the decisions from other jurisdictions support the state’s position in this case, i.e., upon reconviction and resentencing for the same crime the sentencing court may increase the sentence and in fact may assess any sentence it believes appropriate within the maximum set by statute and the previous sentence is no limitation upon that authority.
Most courts in the majority have primarily premised their holding on the theory that in obtaining a new trial a defendant assumes the risk of a more severe sentence.2 These courts reason that in asking for and receiving a [466]*466new trial, a defendant must accept the hazards as well as the benefits that could result therefrom.
However, New Jersey and California and some other jurisdictions 3 have declined to follow the majority and have taken a minority position in opposition to allowing an increased penalty.
State v. Wolf 4 involved an appeal by the state from a trial court’s order that the state could not seek the death penalty in the retrial of a defendant whose first conviction and sentence of life imprisonment had been reversed on appeal. The New Jersey Supreme Court, in affirming the trial court’s order, found it unnecessary to decide the case under either the double-jeopardy or the due-process theories, and instead rested its decision on procedural policies, which it said are of the essence in the administration of criminal justice. To set the risk of a man’s life as the price of an appeal from an erroneous conviction, the court reasoned, is a hardship so acute and so shocking that public policy cannot tolerate it. To the state’s argument that many automatic and frivolous appeals would result from the court’s decision, it was said:
“. . . although the objective of deterring automatic and frivolous appeals may be a desirable one, accomplishment of the purpose by confronting the defendant with the possibility of a death sentence, if his appeal is successful, is inhumane since it does not take into account the merits of his claim of erroneous conviction of the homicide charged against him. In a choice between forcing the defendant either to surrender his right to an error free trial as well as his right of appeal, and to accept the life imprisonment sentence, or to put his life at stake again on retrial following a successful appeal, justice can follow only one course. That course is the one demanded by procedural fairness and principles of public policy, namely, prohibition of such a fearsome election, and the restriction of available punishment at a [467]*467new trial to life imprisonment, if a second, conviction results.” 5
The California Supreme Court,6 confronted with a fact situation substantially similar to that involved in Wolf, reached the same conclusion, though on grounds of double jeopardy, that no one should be faced with such a desperate choice.
Several 1967 decisions from courts of appeal from various federal circuits have sparked controversy over the question presently before this court. They present three alternative approaches:
1. Allow more severe sentencing without limitation. United States v. Russell.7
2. Impose an absolute prohibition on increased sentences. Patton v. North Carolina.8
3. Prohibit increased sentences unless events occur and come to the court’s attention subsequent to the first sentence, which events warrant an increased penalty. Marano v. United States.9
In United States v. Russell the defendant had been convicted on eight counts of forgery and two counts of burglary. His sentence was “not less than two years nor more than six.” 10 Defendant’s conviction was set aside on habeas corpus and a new trial was held. The burglary counts were withdrawn and, after a jury trial, defendant was found guilty on the forgery counts. Defendant’s new sentence included imprisonment of “not less than three and one-half nor more than seven years.” 11 After remarking that the new sentence was within the legal limits, the court of appeals from the Third Circuit said:
[468]*468“When he [the defendant] appeared and entered a plea of not guilty at the second trial, the slate had been wiped clean and it was an entirely new case and bore no relationship whatsoever to his previous plea of guilty which he had entered.
“. . . it would therefore seem to be the rule in the federal system that a trial judge, when a new trial is ordered, may impose a sentence greater than one he had earlier vacated, and that it is unnecessary to articulate the reason for any differentiation in the term of the sentence.” 12
In Patton v. North Carolina, the court of appeals from the Fourth Circuit laid down a blanket prohibition against any increase in a sentence on retrial following a successful appeal. Patton, without counsel, pleaded nolo contendere and was convicted of armed robbery. He was sentenced to prison for a term of twenty years. Later, he was awarded a new trial because he had had no counsel. On retrial he was again convicted and the trial judge increased his punishment by sentencing him to twenty-five years (against which the five years he had served were credited).
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Wilkie, J.
Two issues are presented on this appeal:
1. On resentencing may a defendant be given a harsher sentence than the one originally imposed ?
2. On resentencing was the defendant here given credit for time already served under the original sentence?
Increased Sentence on Resentencing.
The first issue raises a question of first impression in this court. Essentially, defendant’s argument is that the [465]*465imposition, or potential imposition, of a greater sentence upon one who successfully pursues a postconviction remedy resulting in resentencing, or in redetermination of guilt followed by resentencing, unconstitutionally inhibits the seeking of postconviction redress. Defendant argues that his right to challenge the proceedings that led to his conviction and sentence should not be conditioned upon his willingness to submit to the risk of an increased punishment over that which was previously imposed. The state public defender in his amicus curiae brief informs the court that it is the practice of his office to advise all clients on the possibility of an increased penalty if they are successful in their appeal. The defender believes that this possibility discourages many prisoners from challenging the legality of their convictions.
Recently, several courts have dealt with the issue before this court. While many of these cases involve situations in which the defendant has successfully appealed his original conviction, and upon reconviction has been resentenced, we see no good reason for distinguishing those cases from situations involving only resentencing.
A recent annotation at 12 A. L. R. 3d 978 points out that a numerical majority of the decisions from other jurisdictions support the state’s position in this case, i.e., upon reconviction and resentencing for the same crime the sentencing court may increase the sentence and in fact may assess any sentence it believes appropriate within the maximum set by statute and the previous sentence is no limitation upon that authority.
Most courts in the majority have primarily premised their holding on the theory that in obtaining a new trial a defendant assumes the risk of a more severe sentence.2 These courts reason that in asking for and receiving a [466]*466new trial, a defendant must accept the hazards as well as the benefits that could result therefrom.
However, New Jersey and California and some other jurisdictions 3 have declined to follow the majority and have taken a minority position in opposition to allowing an increased penalty.
State v. Wolf 4 involved an appeal by the state from a trial court’s order that the state could not seek the death penalty in the retrial of a defendant whose first conviction and sentence of life imprisonment had been reversed on appeal. The New Jersey Supreme Court, in affirming the trial court’s order, found it unnecessary to decide the case under either the double-jeopardy or the due-process theories, and instead rested its decision on procedural policies, which it said are of the essence in the administration of criminal justice. To set the risk of a man’s life as the price of an appeal from an erroneous conviction, the court reasoned, is a hardship so acute and so shocking that public policy cannot tolerate it. To the state’s argument that many automatic and frivolous appeals would result from the court’s decision, it was said:
“. . . although the objective of deterring automatic and frivolous appeals may be a desirable one, accomplishment of the purpose by confronting the defendant with the possibility of a death sentence, if his appeal is successful, is inhumane since it does not take into account the merits of his claim of erroneous conviction of the homicide charged against him. In a choice between forcing the defendant either to surrender his right to an error free trial as well as his right of appeal, and to accept the life imprisonment sentence, or to put his life at stake again on retrial following a successful appeal, justice can follow only one course. That course is the one demanded by procedural fairness and principles of public policy, namely, prohibition of such a fearsome election, and the restriction of available punishment at a [467]*467new trial to life imprisonment, if a second, conviction results.” 5
The California Supreme Court,6 confronted with a fact situation substantially similar to that involved in Wolf, reached the same conclusion, though on grounds of double jeopardy, that no one should be faced with such a desperate choice.
Several 1967 decisions from courts of appeal from various federal circuits have sparked controversy over the question presently before this court. They present three alternative approaches:
1. Allow more severe sentencing without limitation. United States v. Russell.7
2. Impose an absolute prohibition on increased sentences. Patton v. North Carolina.8
3. Prohibit increased sentences unless events occur and come to the court’s attention subsequent to the first sentence, which events warrant an increased penalty. Marano v. United States.9
In United States v. Russell the defendant had been convicted on eight counts of forgery and two counts of burglary. His sentence was “not less than two years nor more than six.” 10 Defendant’s conviction was set aside on habeas corpus and a new trial was held. The burglary counts were withdrawn and, after a jury trial, defendant was found guilty on the forgery counts. Defendant’s new sentence included imprisonment of “not less than three and one-half nor more than seven years.” 11 After remarking that the new sentence was within the legal limits, the court of appeals from the Third Circuit said:
[468]*468“When he [the defendant] appeared and entered a plea of not guilty at the second trial, the slate had been wiped clean and it was an entirely new case and bore no relationship whatsoever to his previous plea of guilty which he had entered.
“. . . it would therefore seem to be the rule in the federal system that a trial judge, when a new trial is ordered, may impose a sentence greater than one he had earlier vacated, and that it is unnecessary to articulate the reason for any differentiation in the term of the sentence.” 12
In Patton v. North Carolina, the court of appeals from the Fourth Circuit laid down a blanket prohibition against any increase in a sentence on retrial following a successful appeal. Patton, without counsel, pleaded nolo contendere and was convicted of armed robbery. He was sentenced to prison for a term of twenty years. Later, he was awarded a new trial because he had had no counsel. On retrial he was again convicted and the trial judge increased his punishment by sentencing him to twenty-five years (against which the five years he had served were credited). The court of appeals held that the due-process and equal-protection clauses (and, though not necessary to the decision, the double-jeopardy prohibition of the fifth amendment) require a uniform rule barring the subsequent imposition of a sentence in excess of one which has been invalidated. The court pointed out that:
“The risk of a . . . greater sentence . . . may prevent defendants who have been unconstitutionally convicted from attempting to seek redress.” 13
An intermediate position was taken by the court of appeals from the First Circuit in the case of Marano v. United States. In Marano the defendant on reconviction was sentenced to five years rather than three as he had been originally sentenced. The court stated that a judge [469]*469should not be permitted to change his mind by deciding that he had been too lenient the first time. However, the court held that it was proper in resentencing for the court “to take subsequent events into consideration, both good and bad.” 14 At the second sentencing a presentence report had been received disclosing new circumstances. The court of appeals reversed and remanded for resentencing Since (1) the new circumstances were not the sole ground for the increase in sentence, and (2) the presentence report may not have been enough, standing alone, to support the new sentence.
The court went on, in a footnote, to suggest that a trial court affirmatively state its grounds when it increases a sentence.
The court of appeals from the Seventh Circuit, in United States v. White,15 recently considered all three of these approaches by sister circuits. The defendant’s conviction and sentence had been set aside and a new trial ordered. The defendant had received concurrent sentences of six months’ imprisonment plus thirty months’ probation. Following the reversal, a new trial was held, the defendant was convicted and a longer prison term imposed. On appeal the defendant claimed that the longer prison term following the second trial violated the due-process clause and double-jeopardy provision of the constitution. In rejecting this argument the court held that:
“. . . when, as here, it appears in the record that the sentencing judge is not penalizing the defendant for having exercised his right to appeal, the imposition of a greater sentence upon reconviction does not constitute a denial of due process and that such action lies within the discretion of the district judge.” 16
The court rejected the “sweeping and inflexible” prohibition against increased sentences set forth in Patton [470]*470v. North Carolina and the suggestion in Marano that the resentencing judge affirmatively disclose the particular facts bearing upon the exercise of his discretion which he had on resentencing, as per Russell, with which approach the court agreed.
The United States Supreme Court has yet to reach the exact issue presented in this case. In Stroud v. United States 17 (the defendant in that case being Robert F. Stroud who was immortalized as the “Birdman of Alcatraz” in the book by Thomas E. Gaddis), the court upheld a judgment of conviction imposing the death penalty following the reversal of a conviction fixing the punishment at life imprisonment. The Stroud Case, however, was grounded only on the double-jeopardy provision of the constitution. The holding in Stroud has been eroded or abandoned in Green v. United States,18 where the court held Stroud “clearly distinguishable” and the double-jeopardy clause offended when a conviction of first-degree murder, carrying a death sentence, was ordered upon retrial following the reversal of a conviction of second-degree murder, carrying only imprisonment. A harbinger of the direction the supreme court might take when confronted with this issue may be found in the recent case of United States v. Jackson,19 decided on April 8, 1968. There the court looked aghast on “choices” that can involve discouraging assertions of constitutional rights and held that the death penalty of the “Lindbergh” Act 20 was unconstitutional. The section of the Act under attack provided that the death penalty could only be imposed if recommended by a jury. A person who pleaded guilty or waived trial by jury could not be sentenced to death. This, the court held, “needlessly penalizes the assertion of a constitutional right.” 21
[471]*471At least three state courts have expressed their reactions to the decisions of the courts of appeal.
The Special Appeals Court of Maryland in Moon v. State,22 after citing the conflict in Marano, Russell, and Patton, and noting the absence of an authoritative ruling by the Supreme Court of the United States, chose to allow increased sentences.
The North Carolina Supreme Court, in State v. Paige,23 held that an increased sentence could be imposed, saying:
“The defendant was granted a new trial at his request and under our decisions that resulted in a retrial of the whole case — verdict, judgment, and sentence. State v. White, 262 N. C. 52, 136 S. E. 2d 205. Three United States Courts of Appeals — the 7th, 10th, and 3rd Circuits —have recently affirmed harsher sentences following retrial: United States v. White, 382 F. 2d 445 (7th Cir., 1967); Newman v. Rodriguez, 375 F. 2d 712 (10th Cir., 1967); United States ex rel. Starner v. Russell, 378 F. 2d 808 (3d Cir.), cert. den. 389 U. S. 889, 88 S. Ct. 166, 19 L. Ed. 2d 189 (1967). We are aware of a contrary opinion by the 4th Circuit in the case of Patton v. State of North Carolina, 381 F. 2d 636 (4th Cir., 1967). We are also aware that the Attorney General of the State of North Carolina has petitioned the United States Supreme Court for a writ of certiorari to review the decision in the Patton case.”
The Oregon Supreme Court, in State v. Turner,24 chose to adopt the approach advocated in Patton, which approach was recommended by the Advisory Committee on Sentencing and Review of the American Bar Association Project on Minimum Standards for Criminal Justice in its tentative draft of “Standards Relating to Post-Conviction Remedies.” The following standard is proposed:
“6.3 Sentence on re-prosecution of successful applicants; credit for time served.
“ (a) Where prosecution is initiated or resumed against an applicant who has successfully sought post-conviction [472]*472relief and a conviction is obtained, or where a sentence has been set aside as the result of a successful application for post-conviction relief and the defendant is to be re-sentenced, the sentencing court should not be empowered to impose a more severe penalty than that originally imposed.
“(b) Credit should be given towards service of the minimum and maximum term of any new prison sentence for time served under a sentence which has been successfully challenged in a post-conviction proceeding.” 25
In its commentary on sec. 6.3, the Advisory Committee states:
“Care should be taken to prevent the imposition of more harsh sentences, or the implicit threat of the possibility, from deterring applicants with meritorious claims from presenting them for vindication. There is some evidence that this repressive attitude exists today. ‘The only hope for straightening things out is to give some “Gideonite” a new trial and reconvict him,’ said a clerk of court in Escambia County, Florida. ‘If we give him a heavier sentence than he got the first time, maybe that will serve as a lesson to the others.’ Time Magazine, Oct. 18, 1968, p. 53. A trial judge in Delaware County, Pennsylvania, denying a defendant credit for over three years of time already served under an invalidated sentence, said: ‘This is the risk these prisoners take when they seek to take advantage of new legal interpretations.’ Delaware County (Pa.) Daily Times, March 24, 1965, sec. 2, p. 1 . . . .
“In light of these constitutional concerns and the probable deterrent effect if increased sentences are imposed upon successful post-conviction relief applicants, the Advisory Committee recommends that the original sentence operate as a ceiling in cases where a new conviction is obtained. Even though new facts may be brought to light which might occasionally warrant a heavier sentence, the Advisory Committee believes it is preferable to establish a standard that is prophylactic in effect, and easily ad[473]*473ministered, whereby sentencing judges are not given power to increase a sentence when an applicant has exercised his right to seek a post-conviction remedy. This takes the matter out of the discretion of the sentencing judge. Some members of the Advisory Committee would prefer merely to admonish sentencing judges not to penalize applicants who have sought relief, but the majority concluded that a mandatory ceiling is necessary. The Advisory Committee also recommends that the original sentence operate as a binding ceiling when the contention upheld in the post-conviction proceeding concerned the sentence or sentencing process. . . .” 26
The Oregon court’s decision was not premised on constitutional grounds, but, like the New Jersey court in Wolf,27 it rested on procedural policy.
The writer of this opinion is the only member of the court who would adopt the approach approved in Patton and Turner, and recommended by the proposed standards advocated by the ABA. The writer is persuaded by the reasoning of the court of appeals from the Fourth Circuit that any increase in sentencing constitutes a violation of the due-process and equal-protection guaranties of the United States Constitution. Six justices believe that until the United States Supreme Court has spoken unequivocally on this issue the approach of Maraño is correct. Hereafter, on resentencing following a second conviction after retrial, or mere resentencing, the trial court shall be barred from imposing an increased sentence unless (1) events occur or come to the sentencing court’s attention subsequent to the first imposition of sentence which warrant an increased penalty; and (2) the court affirmatively states its grounds in the record for increasing the sentence.
We now proceed to apply this standard to the instant case.
[474]*474Defendant argues that Judge Callow did not have any new facts before him at the resentencing to warrant a penalty of increased severity. The state contends that at the resentencing, the court first became aware of the fact that defendant had three past felony convictions that were unknown when the original sentence was imposed.
The record discloses the following:
The defendant first appeared before Judge Callow on June 6, 1966, and on June 23, 1966, the court withheld passage of sentence and placed him on probation for a period of three years. At the June 23, 1966, sentencing, the court was informed that the defendant had just been released from the Iowa state penitentiary, where he had served eighteen months of a three-to-five-year sentence.
The defendant then appeared before the court on February 13 and 14,1967, for sentencing following revocation of the probation. At this time the court had before it a probation return order which indicated that defendant had operated a motor vehicle without an operator’s license while on probation. The testimony of Probation Officer George Hanson established that the defendant was originally placed on probation in Racine county on September 25, 1963. The Racine charge was issuance of worthless checks. Defendant absconded and subsequently was arrested in Iowa on worthless-check charges. He then served the eighteen months in the Iowa state penitentiary.
In September, 1967, after granting defendant’s motion to vacate the sentence, the court was informed, apparently by the district attorney from an FBI report, that the defendant’s background included a 1956 forgery conviction in Chicago and 1958 burglary and forgery convictions in Milwaukee. Apparently based on defendant’s entire record the harsher sentence was imposed. We say “apparently” because nowhere does the record show the reasons for the trial court’s action.
A minority of the court (three members) concludes that the sentencing court did have information of subse[475]*475quent events (information first brought to the sentencing court’s attention at the time of resentencing), and that the increased sentence was based on this new information about previous crimes. The majority, however, is not convinced that the court relied solely on this information in increasing the sentence and did not satisfactorily state reasons for the record why the increased sentence was imposed. We therefore remand for resentencing in accordance with the standards herein adopted.
Credit for Time Served.
This brings us to the second issue presented on this appeal, whether credit was given to the defendant for time already served. Defendant claims he has not been given credit for the time he served between February 14, 1967, and October 4,1967.
Before resentencing, the court correctly stated:
“This court would observe that the law of Wisconsin provides that any time previously served by the defendant shall be considered as time served upon any subsequent sentence imposed and this right accrues to Mr. Leonard’s advantage.”
The state argues that there is nothing in the record indicating that the court did not give the defendant credit and “the only conclusion that can legitimately be reached on the basis of this record is that credit was given and that the sentence imposed is the net sentence.” In essence, the state’s argument is that the court would have imposed a longer sentence than it actually did had credit not been allowed.
The state’s contention here misses the point. The principle of fair play insists that judges in passing sentence give credit for time already served. Sec. 6.3 (b) of the ABA standards recommends that credit be given. Wis[476]*476consin statutes, see. 958.06 (3), so provide.28 Even if the state’s theory is accepted, the defendant is only given credit off the top of his sentence. This reduces his maximum but not the minimum. Under the old sentence, the defendant would have been eligible for parole after one year. Under the new sentence, he is eligible after two years (one year must be served on each consecutive count). If defendant is truly given credit for time served, he must be deemed to have served the almost nine months between sentences. Under the state’s conception of the procedures, defendant is apparently only given time off the maximum and his parole eligibility date will be extended nine months. This view is without merit. Although a minority of the court (three members) would modify the judgment so as to give the defendant credit for the period of February 14 to October 4, 1967, as time served under the new sentence, a majority concludes that rather than have this court modify the judgment, the sentencing court should give the proper credit on re-sentencing by providing that time already served is to be considered as time first served on the sentence.
By the Court. — Sentence vacated and cause remanded for resentencing in a manner consistent with this opinion.