¶2I do not agree with the interpretation given by the majority of the Pre-commitment Investigation Statute where it holds that the Legislature thereby, “merely intended that the investigation precede commitment. Consequently the judge could pronounce judgment and sentence before the precommitment investigations were conducted, the order of commitment following both judgment and sentence.”
¶3The statute says:
“No defendant convicted of a felony shall be committed by any criminal court of record before a written precommitment investigation report, prepared by a probation officer, is presented to and considered by the sentencing court. Whenever precommitment investigation is required, the probation officer making the investigation shall inquire into the circumstances of the offense and shall make such investigation as is prescribed by the state probation director of the department of correction. All local and state police agencies shall be required to furnish to the probation officer such records as the probation officer may request. Where in the opinion of the sentencing coicrt, or the investigating authority, it is desirable, the precommitment investigation may include a physical and mental examination of the defendant. If a defendant is thereafter committed to any penal and correctional institution the investigating agency shall send a written report of its precommitment investigation to the penal institution at the time of commitment.” (Emphasis added.) Burns’ § 9-2252.
¶4The majority concedes that the statute is mandatory. Therefore, the sentencing judge must consider the report. The whole point of the requirement that the trial court consider the precommitment investigation report is to have the facts contained therein affect the trial court’s exercise of discretion in determining the amount of fine or term of imprisonment, in deciding whether the sentence should be suspended, and in setting realistic terms of probation. If the court does not have to consider the report until after sentencing, as contended by the majority, then that purpose cannot be accomplished.
¶5*455My position, namely, that the pre-commitment investigation report must be considered by the sentencing judge prior to sentencing is supported by the case of Smeltzer v. State (1962), 243 Ind. 437, 185 N. E. 2d 428. In that case the allegation of error was as follows:
“Appellant here also asserts for the first time that the trial court committed reversible error in that, immediately upon overruling the motion for new trial, the court did not sentence the appellant nor did it fix a date certain for such sentencing but, instead, deferred such sentencing pending the report of a written precommitment investigation by a probation officer.” 243 Ind. at 438.
¶6This Court held that not only was it proper for the trial court to have delayed sentencing but such delay was mandatory under the Pre-commitment Investigation Statute, saying:
“As conceded by the appellant, postponement of sentence was made mandatory under Acts 1959, ch. 264, § 2, p. 632 [§ 9-2252, Burns’ 1961 Cum. Supp.], until such time as ‘a written precommitment investigation report, prepared by a probation officer, is presented to and considered by the sentencing court. . . .’ The temporary and mandatory delay for the purpose of such investigation was for a limited time and purpose and was such as ‘the interest of justice demands’ and is ‘for cause shown,’ ...” 243 Ind. at 445.
¶7In Ware v. State (1962), 243 Ind. 639, 189 N. E. 2d 704, it was asserted that the trial court erred in sentencing and committing the defendant to jail without first requiring and considering a pre-commitment investigation report. In reversing the trial court on this ground, this Court ordered the trial court as follows:
“The cause is, therefore, remanded to the Shelby Circuit Court with instructions for the judge thereof to vacate the judgment and order of commitment and the nunc pro tunc entry thereafter made modifying said order of commitment, and thereupon to proceed in the cause in a manner consistent with this opinion.”
¶8*456This Court first rendered an opinion in this case in Robb, et al. v. State (1968), 289 N. E. 2d 154. In that opinion the Court considered the following allegation of error:
“Appellants argue that the trial court erred in not having a precommitment investigation report before imposing sentence."
¶9The Court reversed the trial court on that ground and ordered as follows:
“The cause is, therefore, remanded to the Lake Criminal Court for the judge thereof to vacate the judgment and order of commitment and thereupon to proceed in the cause in the manner consistent with this opinion.”
¶10Therefore, based upon the mandatory requirement that the sentencing judge consider the report and upon the interpretation of the statute given in the Smeltzer, Ware and first Robb cases, I conclude that the Pre-commitment Investigation Statute makes it imperative for a sentencing judge to receive and consider a report of pre-commitment investigation prior to sentencing.
¶11The record in the present case on appeal apparently shows that the trial judge after receiving the Court’s opinion from which the above is quoted, vacated the judgment, ordered and received a pre-commitment report of investigation, considered the report and again sentenced the defendants. I, therefore, likewise feel that the trial court should, on this point, be affirmed.
¶12Note. — Reported in 255 N. E. 2d 96.