has been conflated to signify release from confinement. Compare Commonwealth v. Milton, 427 Mass. 18, 25, 690 N.E.2d 1232 (1998), with Milton v. Commissioner of Correction, 67 Mass.App.Ct. 253, 257, 853 N.E.2d 557 (2006). That confusion appears to be the basis here for the Commonwealth's assertion that this defendant was “banking” time, even though the reversal of his first conviction occurred long after the beginning of his second confinement.

The application of "banking" as an exception to the otherwise straightforward concept of credit for improper incarceration has been subjected, more recently, to some semantic confusion in our decisions: the term "discharge," referring to the crucial point in time when a conviction is reversed, has been conflated to signify release from confinement. Compare Commonwealth v. Milton, 427 Mass. 18, 25 (1998), with Milton v. Commissioner of Correction, 67 Mass.App.Ct. 253, 257 (2006). That confusion appears to be the basis here for the Commonwealth's assertion that this defendant was "banking" time, even though the reversal of his first conviction occurred long after the beginning of his second confinement.

“[T]he term ‘dead time’ [is used] to refer to time spent in confinement under an invalid sentence for which no day-to-day credit is given against any sentence.” Milton v. Commissioner of Correction, 67 Mass.App.Ct. 253, 256 n. 4, 853 N.E.2d 557 (2006), quoting from Lynch, petitioner, 379 Mass. 757, 759 n. 1, 400 N.E.2d 854 (1980). For the first time on appeal, the defendant argues that delaying the start date for his probation amounts to impermissible tolling.