¶1(concurring specially) .
¶2I concur only in the result.
¶3I. The scope of the majority opinion. The only proposition urged by defendant is that trial court exhausted its sentencing jurisdiction by entry of its February 6, 1969, order of probation so that he could not be “resentenced” October 7, 1970. Strangely, although claiming the probation order entered after his plea of guilty was a sentence precluding later sentence, defendant asks a “new trial” as his remedy. The power of a court to defer sentence is involved only insofar as defendant challenges trial court’s authority to impose probation prior to judgment. The case could and should be disposed of by simply noting, as the majority does, that an order of probation is not a judgment. Its validity could not affect validity of judgment later entered. When that fundamental premise is accepted, discussion of Code § 247.20 and trial court’s power to defer sentence is unnecessary to decision of the appeal. I believe the majority is mistaken in reaching those issues. The appeal is patently without merit and should not be the occasion for an advisory opinion on questions which do not need to be answered in this case.
¶4II. The effect of the majority opinion on deferral of sentence. What trial court did in this case needs to be viewed in perspective. It sought to give defendant the benefit of what has been described as a “deferred sentence.” As will be shown, this dispositional alternative is a carryover from seventeenth century English common law when the only way for a court to relieve from injustice was to refuse to adjudicate guilt. Sentence in appropriate cases, after plea of guilty, is deferred for a specified period, usually upon condition defendant submit to probation. If defendant conforms to the terms of probation he is permitted to withdraw his guilty plea at its expiration and ask that the case be dismissed in the interests of justice. This sentencing option is widely employed by Iowa trial judges. See 57 Iowa L.Rev. 598, 612. Analogous procedure is used in Iowa juvenile courts to permit a child to receive court services without the stigma of delinquency adjudication.
¶5This procedure accomplishes two salutary purposes. It serves as a means of discharging a first offender without a felony record where there are extenuating circumstances, and it is a vehicle for obtaining proper probation supervision without first imposing a penitentiary sentence.
¶6In this case, the State and defendant, at all material times represented by able counsel, reached a plea bargain. Upon defendant’s plea of guilty the State agreed to concur in defendant’s request as to sentence. From the scant record made, it appears this request must have been for deferred sentence and probation. All we have is this record on the subject when the plea of guilty was entered February 9, 1969:
“Mr. TeKippe [Assistant County Attorney] : Your Honor, this matter is coming before the court regarding a change of plea I believe.
*80“The court: It’s a negotiated plea?
“Mr. TeKippe: Yes, Your Honor, the State of Iowa, Dubuque, County has conferred with the defendant’s attorney about the possible plea and concur probably in the recommendation.
“The court: Very well, is that correct, Mr. Klauer?
“Mr. Klauer [defendant’s attorney]: Yes, Your Honor, and at this time we will change our plea and plead guilty.
“The court: Is this a negotiated plea?
“Mr. Klauer: Yes, Your Honor.
“The court: And have you discussed this plea with the defendant William A. Wright?
“Mr. Klauer: Yes, sir.
“The court: And is he familiar with the negotiations you were going through ?
“Mr. Klauer: Yes, Your Honor, and he understands the probation and so forth. (Emphasis supplied.)
¶7The record shows defendant acknowledged his comprehension of the plea bargain and that he entered a voluntary plea of guilty. Although not bound to do so, trial court obviously acquiesced in the agreement for deferred sentence. No complaint was ever voiced by defendant until after his October 7, 1970, sentence upon failure to comply with the terms of the February 6, 1969, sentence deferral order.
¶8Trial courts and the bar should probably give more heed to the result in this case than how it was reached. The majority discusses the court’s authority to impose probation under Code § 247.20 and finds none. However, the right to impose probation without a defendant’s consent is not essential to use of this sentencing option, nor was it essential in this case.
¶9A more crucial question is raised by the majority’s treatment of a trial court’s authority to postpone sentences. Here again what the court has done seems to me clearer and more significant that what is said. Trial court’s order of February 6, 1969, obviously was intended to defer sentence as one step in pursuing the deferred sentence procedure. Usually trial courts select shorter periods, ranging from six months to one year. This apparently is based upon the theory that a fit subject for this dispositional alternative will be able to demonstrate whether he should receive the law’s penalty in a relatively short time. In the present case trial court’s order fixed sentencing for 13 months after plea of guilty. Nevertheless, the majority has found it did not thereby lose its jurisdiction to sentence defendant then or on October 7, 1970, when sentence was actually pronounced.
¶10Even though language in the majority opinion purports to limit a trial court’s power to defer sentencing even to a definite date, that limitation was not effective to void what was done here. It also seems significant that the majority did not find it necessary to consider the question of waiver in order to reach its result.
¶11Therefore, I do not think the majority opinion in this case necessarily forestalls future use of this sentencing alternative.
¶12III. Statutory authority to defer imposition of sentence. The majority’s position is contradictory in Divisions II and IV. In Division II it concludes Iowa trial courts have no inherent power to defer imposition of sentence, authority to do so must be statutory, and, unfortunately, Iowa has no appropriate statute. In Division IV, however, it concludes Iowa trial courts do have power to defer imposition of sentence “for the purpose of hearing and determining motions for new trial or in arrest of judgment or for such reasonable time as may be necessary to complete an investigation of the accused’s record, his family life and other facts bearing upon his likelihood of reformation in order to determine a just and appropriate sentence.” No statutory authority is cited, but the majority has “no doubt” the power exists. Thus, in *81the same opinion the majority announces and then violates its precept that Iowa trial courts have no inherent power to defer imposition of sentence.
¶13Actually, there is statutory authority in § 789.2, The Code, by which the legislature expressed its policy concerning time of sentence. It prescribes a minimum but no maximum time. Trial courts are by its terms mandated to defer imposition of sentence for the minimum period and implicitly permitted in the proper exercise of judicial prerogative to determine when sentencing should be later fixed. Cf. People v. Harrison, 5 Cal.App.3d 602, 612, 85 Cal.Rptr. 302, 308 (1970) (“A delayed judgment will not be reversed when no miscarriage of justice occurs.”) ‘
¶14The majority has judicially amended the statute. In doing so it leaves many unanswered questions. For example, does it mean that a trial court loses jurisdiction to sentence by mere passage of time? If so, what about situations where sentence is deferred because the accused has absconded? Or because he is incarcerated for a time somewhere else ? Or because he is ill ? Or where he requests or acquiesces in the delay? Or when the prosecution requests delay? Or where, as here, most of the delay is the result of a plea bargain ? Above all, what is “reasonable delay” ?
¶15It is significant that sentencing power did not expire in this case although exercised twenty months after defendant’s guilty plea and despite an order originally postponing its exercise for 13 months. We found no loss of jurisdiction in State v. Stevens, 47 Iowa 276 (1877) (17 month delay in sentence) and State v. Ray, 50 Iowa 520 (1879) (seven month delay in sentence). The majority says these cases are not “helpful.” Yet, the delays involved were not for purposes now approved and, nevertheless, power to sentence was not lost. Cf. McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1935) (six year delay in sentence); 24 B C.J.S. Criminal Law § 1928 at 260-261 (“In the absence of prejudice, neither undue haste nor undue delay in pronouncing judgment or imposing sentence, … constitutes reversible error.”)
¶16Statutory authority for deferring sentence is granted by § 789.2, The Code. There is also statutory authority for the additional steps in using the deferred sentence option as previously described. The majority does not discuss them, but they are part of the employment of this disposi-tional alternative. Authority for withdrawal of the plea of guilty with court permission is in § 777.15, The Code: “At any time before judgment, the court may permit the plea of guilty to be withdrawn … Finally, the legislature in § 795.5 cloaked trial courts with power to dismiss a criminal case at any stage: “The court, upon its own motion or the application of the county attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution … (Emphasis supplied.) It is anomalous to suggest trial courts have statutory power to end a prosecution at any stage but none to fix the time at which each stage will be reached.
¶17Iowa trial courts have clear statutory authority for deferring imposition of sentence and for following through with the other steps involved in pursuing this sentencing alternative.
¶18IV. Inherent power to defer imposition of sentence. Even if there were no statutory authority for deferring imposition of sentence in Iowa, there would be inherent power to do so. The principle is explained in People ex rel. Forsyth v. Court of Sessions, 141 N.Y. 288, 292, 36 N.E. 386, 387 (1894):
“There can, I think, be no doubt that the power to suspend sentence after conviction was inherent to all such courts at common law. The practice had its origin in the hardships resulting from peculiar rules of criminal procedure, when the court had no power to grant a new trial, either upon the same or additional evidence, and the verdict was not *82reviewable upon the facts by any higher court. The power, as thus exercised, is described in this language by Lord Hale: ‘Sometimes the judge reprieves before judgment, as where he is not satisfied with the verdict, or the evidence is uncertain, or the indictment is insufficient, or doubtful whether within clergy; also when favorable or extenuating circumstances appear, and when youths are convicted of their first offense. And these arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their sessions be adjourned or finished; and this, by reason of common usage.’ 2 Hale, P. C. c. 58, p. 412. This power belonged, of common right, to every tribunal invested with authority to award execution in a criminal case. 1 Chit.Cr.Law, (1st Ed.) 617, 758. Without attempting to collate all the authorities on the subject, it is sufficient to say that the power to suspend sentence at common law is asserted by writers of acknowledged authority on criminal jurisprudence, by the uniform practice of the courts, and numerous adjudged cases. (Citations) (Emphasis supplied.)
¶19Sir Matthew Hale, whose statement is quoted, was Lord Chief Justice of the King’s Bench from 1671 until his death five years later. Many jurisdictions have recognized this inherent power. See People v. Patrick, 118 Cal. 332, 50 P. 425 (1897); Ex parte Williams, 26 Fla. 310, 8 So. 425 (1890); State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971); Huggins v. Caldwell, 223 Ky. 468, 3 S.W.2d 1101 (1928); People v. Mueller, 15 Chicago Leg. News, 364 (Illinois 1883); Ex parte St. Hilaire, 101 Me. 522, 64 A. 882 (1906); Commonwealth v. Dowdican, 115 Mass. 133 (1874); People v. Reilly, 53 Mich. 260, 18 N.W. 849 (1884); Sylvester v. State, 65 N.H. 193, 20 A. 954 (1889); State v. Addy, 43 N.J.L. 113 (1881); State v. Simmington, 235 N.C. 612, 70 S.E.2d 842 (1952); Weber v. State, 58 Ohio St. 616, 51 N.E. 116 (1898); Com. v. Dunleavy, 16 Pa.Super. 380 (1901); see also 21 Am.Jur.2d Criminal Law §§ 552-557.
¶20Some jurisdictions have refused to recognize it. Many of their decisions are distinguishable as dealing with indefinite suspension of sentence or with the distinct issue of suspension of execution rather than imposition of sentence. We recognized the distinction and the inherent power to defer imposition of judgment in State v. Voss, 80 Iowa 467, 469, 45 N.W. 898 (1890) (“The court, in a proper case, may arrest judgment to attain the ends of justice …»)
¶21Extensive analytical discussion of the inherent power of courts to defer imposition of sentence and ultimately discharge a defendant is found in a number of cases in addition to Forsyth. See Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916) (finding no inherent power in federal district courts to suspend execution of sentence); State v. Bateh, 110 So.2d 7 (Fla.1958), cert. den. 361 U.S. 826, 80 S.Ct. 74, 4 L.Ed.2d 69 (1959); Gazda v. State, 244 So.2d 454 (Fla.App.1970); Marks v. Wentworth, 199 Mass. 44, 85 N.E. 81 (1908); Gehrmann v. Osborne, 79 N.J. Eq. 430, 82 A. 424 (1911). Few recent cases discuss the concept because it has long been codified in all of the states where previously recognized at common law. The practice is also authorized by statute in all of the states represented by the majority’s citations.
¶22Public policy as reflected in our statutes, especially Code § 795.5, clearly supports continued recognition and application in Iowa of the inherent power of trial courts to use this sentencing technique. As shown, the principle is deeply rooted in our common law heritage. There is no persuasive reason to deviate from it.
¶23V. The need for legislation. The majority does not discuss the inherent power concept but endorses legislation to authorize the sentencing option involving use of deferred sentence and probation. There are now 47 states other than Iowa which expressly authorize substantially this procedure. Their statutes are as follows:
Alaska—Alaska Stat. § 12,55.080 (1962);
*83Arizona—Ariz.Rev.Stat. § 13-1657 (1956), as amended (Supp.1971);
Arkansas—Ark.Stat.Ann. § 43-2324 (1947);
California—Cal.Penal Code § 1203 (West Supp.1972);
Colorado—Colo.Rev.Stat. § 39-16-6 (1963);
Connecticut—Conn.Gen.Stat. § 53a-28 (Supp.1969);
Delaware—Del.Code Ann. tit. 11 § 4332 (Supp.1968);
Florida—Fla.Stat.Ann. § 948.01(3) (1944), as amended (Supp.1972);
Georgia—Ch. 1190, Statewide Probation Act, Ga.Laws, 1972 Session, at 609-612;
Hawaii—Hawaii Rev.Stat. § 711-77 (1959);
Idaho—Idaho Code § 19-2601 (1947), as amended (Supp.1971);
Illinois—Ill.Rev.Stat. Ch. 38, §§ 117-1 et seq. (1964), as amended (Supp.1972) ;
Indiana—Ind.Stat.Ann. § 9-2209 (Burns 1956), as amended (Supp.1972), IC 1971, § 35-7-1-1.
Kansas—Kan.Stat.Ann. § 21-4603 (Supp.1970);
Kentucky—Ky.Rev.Stat. § 439.260 (1962);
Louisiana—L.S.A.Rev.Stat. Code of Crim.Proc. Art. 893 (West 1967), as amended (Supp.1972) ;
Maine—Maine Rev.Stat.Ann. tit. 34, § 1631 (1964), as amended (Supp.1972);
Maryland—Md.Ann.Code Art. 27, § 641 (1957), as amended (Supp.1972);
Massachusetts—Mass.Ann.Laws, Ch. 276, § 87 (1968), as amended (Supp.1971);
Michigan—Mich.Comp.Laws Ann. § 771.-1 (1968);
Minnesota—Minn.Stat.Ann. Ch. 609, § 609.135 (1964), as amended (Supp.1971);
Mississippi—Miss.Code Ann. § 4004-23 (1942), as amended (Supp.1972);
Missouri—Mo.Rev.Stat. § 549.071 (Supp.1971);
Montana—Mont.Rev.Code § 95-2206 (1947);
Nebraska—Neb.Rev.Stat. §§ 29-2261-2264 (Supp.1971);
Nevada—Nev.Rev.Stat. § 176.225 (1967);
New Hampshire—N.H.Rev.Stat.Ann. § 504.1 (1968);
New Jersey—N.J.S.A. tit. 2A, § 168-1 (1971);
New Mexico—N.M.Stat.Ann. §§ 40A-29-15 to 40A-29-23 (1953);
New York—N.Y.Penal Law § 60.10 (McKinney’s Consol.Laws, C. 40, 1967), as amended (Supp.1972);
North Carolina—N.C.Gen.Stat. § 15-197 (1965);
North Dakota—N.D.C.C.A. § 12-53-13 (1960), as amended (Supp.1971);
Ohio—Ohio Rev.Code Ann. § 2951.02 (Baldwin 1971);
Oklahoma—Okl.Stat.Ann. tit. 22, § 991c (1958), as amended (Supp.1972);
Oregon—Or.Rev.Stat. § 137.010 (1971);
Pennsylvania—Penn.Crim.Proc. tit. 19, § 1051 (Purdon 1964) ;
Rhode Island—R.I.Gen.Laws § 12-19-19 (1969);
South Carolina—S.C.Code § 55-591 (1962);
South Dakota—S.D.Comp.Laws § 23-57-4 (1967), as amended (Supp.1972);
Texas—Tex.Const.Ann. Art. 4 § 11A (Vernon 1955) and Tex.Stat.Ann. Code of Crim.Proc. Art. 42.12 (Vernon 1966), as amended (Supp.1971);
*84Utah—Utah Code Ann. § 77-35-17 (1953);
Vermont—Vt.Stat.Ann. tit. 13 § 7042 (1958), as amended (Supp.1972);
Virginia—Va.Code § 53-272 (1950);
Washington—Wash.Rev.Code Ann. §§ 9.95.200, 9.95.210 (1961), as amended (Supp.1971);
West Virginia—W.Va.Code § 62-12-3 (1966), as amended (Supp.1972);
Wisconsin—Wis.Stat.Ann. § 57.04(1) (West Supp.1972);
Wyoming—Wyoming Stat. §§ 7-315, 7-318 (1959), as amended (Supp.1971).
¶24Although a few of them do not provide a mechanism for vacating conviction and different approaches are used, these statutes illustrate the almost universal legislative acceptance of deferred sentence procedure as a dispositional alternative. Only Alabama and Tennessee have not authorized it. Many of the statutes have been on the books since the early part of the century, indicating this is far from a new phenomenon. Further, the language frequently used is virtually a codification of the common law principle espoused by Lord Hale 300 years ago. See, for example, the Michigan statute, substantially the same since first passed in 1927, which may be utilized “ … where it appears to the satisfaction of the court that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law * ^
¶25As previously demonstrated, I do not think additional legislation is essential to authorize deferred sentence dispositions, but certainly it would be desirable in order to refine, standardize, and expand the practice now followed. The legislature has already incorporated the concept into § 409 of 64 G.A., ch. 148, involving first offenders convicted of possession of a controlled substance.
¶26It has our own experience and that of 47 other states to guide it to appropriate legislation spelling out in detail how and in what situations trial courts should utilize it. Authority to impose probation before sentence can also be specifically given.
¶27Iowa now has an adequate system to implement a beneficent ideal. Statutory revision could bring a better system.