The United States Supreme Court has not yet spoken on the retroactivity of Argersinger v. Hamlin, supra. But see City of Cincinnati v. Berry, 34 Ohio St.2d 106, 296 N.E.2d 532 (1973); City of Seattle v. Brenden, 8 Wn. App. 472, 506 P.2d 1314 (1973); Potts v. Superintendent of Virginia State Pen., 213 Va. 432, 192 S.E.2d 780 (1972); Wood v. Superintendent Caroline Correctional Unit, 355 F. Supp. 338 (E.D.Va. 1973); Herndon v. Superintendent, Virginia State Farm, 351 F. Supp. 1356 (E.D.Va. 1972). In any event, however, since the appeal in this case was still pending when the Argersinger decision was handed down, the defendants are entitled to the benefit of its pronouncements.

The defendant was given the option by the superior court to avoid 30 days in jail if he did not allow the premises to be occupied without bringing it up to code and did not violate the housing code for 1 year. City of Seattle v. Brenden, 8 Wash. App. 472, 506 P.2d 1314 (1973). All of those cases involved the courts ordering the defendants to come into compliance with what the local codes required.

That subject is dealt with in Section 77-64-4, U.C.A., 1953, which provides: State v. Anaya, 76 N.M. 572, 417 P.2d 58 (1966); City of Seattle v. Brenden, 8 Wn. App. 472, 506 P.2d 1314 (1973); State v. Timmons, 218 Kan. 741, 545 P.2d 358 (1976). At or after the time of the first appearance, before a committing magistrate, the determination of indigency shall be made by the court.

The right to appeal is absolute, and no penalty can be imposed for its exercise. City of Seattle v. Brenden, 8 Wn. App. 472, 474, 506 P.2d 1314 (1973). It is `patently unconstitutional' to chill the exercise of constitutional rights by penalizing those who choose to exercise them.

[4] When a criminal matter is reviewed pursuant to a trial de novo, the reviewing court may properly impose any sentence within the statutory limits. Seattle v. Brenden, 8 Wn. App. 472, 474, 506 P.2d 1314 (1973). However, the reviewing court may not constitutionally impose a higher sentence if, in so doing, it intends to penalize the defendant's exercise of his right to appeal. Colten v. Kentucky, 407 U.S. 104, 116, 32 L.Ed.2d 584, 92 S.Ct. 1953 (1972); Seattle v. Heath, 10 Wn. App. 949, 956-57, 520 P.2d 1392 (1974).

On appeal, the Superior Court sentenced the defendant to 90 days, with none suspended. The rationale for such action was the latter court's belief that only the imposition of a "stiff" jail sentence would deter defendant's further practice of prostitution. There is nothing in the record to support defendant's contention that the enhanced sentence was a punishment for the exercise of the de novo right of appeal. Colten v. Kentucky, 407 U.S. 104, 32 L.Ed.2d 584, 92 S.Ct. 1953 (1972); Seattle v. Heath, 10 Wn. App. 949, 956, 520 P.2d 1392 (1974); Seattle v. Brenden, 8 Wn. App. 472, 474, 506 P.2d 1314 (1973). [2] This appeal illustrates the potential for abuse inherent in an indigent's right to appeal at public expense.

[6] The final contention of the defendant raises the issue of whether the trial court erred in imposing a greater punishment in superior court than that received in municipal court. He argues he has been placed in jeopardy twice. Seattle v. Brenden, 8 Wn. App. 472, 474, 506 P.2d 1314 (1973), held: When a matter is reviewed by a trial de novo, the reviewing court can properly sentence within the limits of the offended statute without regard to the prior sentence.