¶1dissenting:
¶2I am unable to concur in the majority’s analysis or conclusion and thus I dissent.
¶3I agree that the source of the Superior Court’s authority to impose split sentences, if it exists, is to be found in D.C.Code 1973, § 16-710, for it is now beyond dispute that the Federal Probation Act, 18 U.S.C. § 3651 (1976), is inapposite to cases tried in the Superior Court. Schwasta v. United States, D.C.App., 392 A.2d 1071, 1077 (1978); Sanker v. United States, D.C.App., 374 A.2d 304, 306-09 (1977). Having taken this first step, however, we are not compelled by Schwastaor Sankerto reach the result the majority reaches here. As a member of the division that decided Schwasta, I was convinced that § 16-710 clearly and unambiguously foreclosed the type of sentencing activity that the trial court attempted there — probation after the suspension of the imposition of sentence. Schwasta v. United States, supra at 1077. I am of the opinion that § 16-710 not only does not foreclose split sentences but can be read fairly, clearly, and unambiguously as an authorization for the Superior Court to impose split sentences.
¶4Section 16-710 states in pertinent part that the Superior Court
may . . . suspend the imposition of sentence or impose sentence and suspend the execution thereof, for such time and upon such terms as it deems best, if it appears to the satisfaction of the court that the ends of justice and the best interests of the public and of the defendant would be served thereby. In each case of the imposition of sentence and the suspension of the execution thereof, the court may place the defendant on probation under the control and supervision of a probation officer.
¶5Several observations are germane to this passage. First, it enables the trial court to utilize a greater degree of discretion in sentencing by permitting it, in the exercise of its judgment, to deviate from the mandatory sentence provision of the criminal statutes. The power to deviate from the sentencing provisions of statutes and utilize probation as an alternative sentence is not inherent and must be granted by the legislature. Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed.2d 129 (1916).
¶6Second, the statute directs that the trial court’s discretion in sentencing shall be directed toward “the ends of justice” and limited by “the best interests of the public and the defendant.” Thus, although the statute confers upon the Superior Court a discretion in sentencing that it otherwise would not enjoy, it imposes a standard by which the power delegated is to be exercised. This broad capacity to shape the penalty exacted from a defendant upon conviction of a crime is entirely in keeping with the notion that a trial judge exercises wholly independent judgment in sentencing. Franklin v. United States, D.C.App., 392 A.2d 516, 520 (1978).
¶7Third, the statute imposes no other restrictions upon the trial court’s exercise of discretion to use probation in sentencing— as to either the occasions upon which probation will be employed or the part it will play in the sentencing program. There appears to me to be no merit in the majority’s suggestion that Ziegler v. District of Columbia, D.C.Mun.App., 71 A.2d 618, 619 (1950), requires that probation be employed as an alternative to incarceration rather than as an addition to it. The trial court in Zieglerattempted to suspend altogether the penalty imposed by the criminal statute at a time when the D.C. probation statute did not permit suspension. Id. See also Ex Parte United States, supra (cited in Ziegler). That case was on all fours with Schwasta v. United States, supra. The court in Zieglerheld that the statute clearly and unambiguously foreclosed the sentence the trial court had imposed just as this court held in Schwasta.
¶8*963The words of Justice Holmes bear repeating: “We do not inquire what the legislature meant; we ask only what the statute means.” 0. W. Holmes, Collected Legal Papers 207 (1920). Section 16-710 enables the trial court to exercise broad discretion that would not be possible under the sentencing provisions of the criminal statutes. It states a standard by which the trial court exercises that discretion but it does not foreclose the alternative of split sentencing by any but a tortured reading. Even if I were to concede that the statute is sufficiently ambiguous to justify an amplification of the enacted text by a reference to the legislative history, I find nothing therein upon which to rest the majority’s conclusion. Their reading of the legislative history shows at best that Congress did not consider the possibility of split sentencing. It surpasses law and logic to assume that the Congress intended to proscribe what it did not consider. I cannot credit such a conclusion. The words of the statute speak more directly and more eloquently than do the subsequent suppositions of a court.
¶9In conclusion, I suggest that the effect of both the decision in this case and that of Schwasta, with the limits they place on the sentencing alternatives of trial judges, are appropriate subject matter for legislative correction by explicit grant of such authority.