¶1dissenting.
¶2I dissent from the majority opinion because I believe that statutorily mandated sentences to the extent that they deny the court the right to exercise its discretion to suspend either the imposition or execution of a sentence constitutes an intolerable usurpation of an inherent power of the court to grant probation.
¶3My initial disagreement with the majority opinion was on the issue of jurisdiction. The case should be within the exclusive appellate jurisdiction of the Missouri Supreme Court as one involving the “construction of the Constitution of the United States or of this state,” Mo.Const. Art. V, § 3. As reflected by the majority opinion, the precise constitutional question involved has not been previously resolved in Missouri. In addition, as discussed below, I feel that the issue involved here is not one to be resolved by application of the well-established principle that the legislature fixes the limits of punishment. Appellant’s attack on the statute is that it is unconstitutional under any interpretation rather than that a particular interpretation of the statute might render it unconstitutional. An attack framed in this fashion requires a decision by the State Supreme Court, Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570, 571 (Mo.1965); State v. Brookshire, 325 S.W.2d 497, 501 (Mo.1959); Cotton v. Iowa Mut. Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246, 250 (1952); State v. Hatton, 240 Mo.App. 1244, 228 S.W.2d 10, 12 (1950). I, therefore, agree with the statements in the briefs of both appellant and respondent that jurisdiction in this case should be vested in the Supreme Court rather than this court.
¶4Because the majority opinion considers the merits of appellant’s attack on the statute, my dissent on the substantive issues involved is necessary.
¶5The constitutionality of mandatory sentences excluding the possibility of probation has not been decided in Missouri. The decisions in Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916) and Ex Parte Thornberry, 300 Mo. 661, 254 S.W. 1087 (banc 1923), relied upon by the majority, dealt with the power of a court to indefinitely suspend the execution of sentence. In Ex Parte United States, the sentence was suspended during the good behavior of the defendant. In Ex Parte Thornberry, the trial court advised defendant that he could avoid punishment if he left the area immediately. The asserted powers in those cases to indefinitely suspend the execution of sentence seems quite different from the action of a trial court in utilizing probation on definite terms for a definite period as part of the sentence imposed in appropriate circumstances. To indefinitely suspend a sentence is a repudiation of the authority of the legislature to define crimes. To grant probation is to apply the legislature’s policy choice to punish a particular type of conduct but to do so in the manner most conducive to justice in the specific circumstances. The majority’s analogy of the mandatory sentence statute to the Second Offender Act is also not persuasive since judicial parole is not precluded by that statute, Crow v. State, 492 S.W.2d 40, 46-7 (Mo.App.1973). Finally, the majority’s statement of the general rule that it is a legislative function to define the parameters of punishment for a crime does not clearly foreclose the issue of a court’s responsibility to individualize that punishment within those parameters.
¶6The Missouri Constitution guarantees the division of both the specifically enumerated and inherent powers of government into three distinct branches, Art. II, § 1. Compliance with this constitutional provision requires that the judiciary not encroach on *440the functions of the legislative or executive branches. The corollary of that principle, that the judiciary must guard against encroachment on its own power, has, however, all too often been overlooked because of the conservatism of the state’s judiciary. The majority opinion represents but one further example of this attitude.
¶7Even though mandatory sentences are intended to emphasize the harshly deterrent aspects of punishment rather than the rehabilitative, it seems that some flexibility must be retained in the system. A legal system that cannot react at all to the wide range of circumstances surrounding a particular defendant’s involvement with drugs must engender disrespect. Widespread disrespect for the drug laws has been noted as a principal problem in the enforcement of such laws, Eisberg, “Missouri Needs Marijuana Reform,” 32 Jrnl.Mo.Bar 168, 173 (1976). A sentencing system precluding judicial discretion can also become self-defeating.
¶8There are several additional reasons why the mandatory minimum is a naive and destructive provision. As noted, the definition of offenses if of necessity in general terms, and the varying circumstances in which an offense can occur will to a certainty lead to cases where all would agree that a long period of confinement is unwarranted. Both judges and prosecuting officials recognize such cases when they arise, and are immediately put in a most awkward position. They may either enforce the letter of the law and perpetrate a clear injustice, or they may ignore the law and defeat the apparent intent of the legislature. Both results are destructive of the very public confidence in the system which is sought by the mandatory minimum term.
¶9The process or nullification which comes about by judicial nonenforcement of mandatory provisions also illustrates another point which is often ignored in the heat of the moment which produces such legislation. It is frequently stated by the proponents of mandatory minima that such devices are needed to prevent “soft” judges from being lenient toward dangerous offenders and to provide a sureness of punishment that will act as the great deterrent. But the fact remains — whether the judge is right or whether he is wrong — that the judge has numerous discretionary means by which he can, and by which judges do, defeat the intent of such legislation. The intention to hamstring “soft” judges thus may boomerang to result in more lenient treatment — perhaps even acquittal — than even the judges themselves would desire. The search for an alternative to the offense which carries the harsh minimum may not always produce an offense which provides an appropriate disposition. The effect on the system, in any event, is that it becomes unmistakably truncated and artificial. ABA Standards, Sentencing Alternatives and Procedures, § 3.2(b), Comments, pp. 149-50 (1968). Juries, of course, might adopt a similar attitude of nullification as a response to the harsh nature of the sentencing system. The end result is that the statute rather than eliminating discretionary elements simply shifts the exercise of discretion to points in the judicial system where the activities of the prosecutor, judge and jury cannot be effectively monitored.
¶10Another curious feature of this mandatory sentence statute is the fact that it only precludes judicial clemency. A defendant can still receive an executive pardon or be paroled by the Board of Probation and Parole on the very first day of his sentence. The statute can thus only be read as a direct insult to the competency of trial judges.
¶11It is the recognition of such difficulties and inconsistencies that has prompted repeated criticism and rejection of mandatory sentence provisions, see ABA Standards, Sentencing Alternatives and Procedures, § 2.3(a) (1968), Model Penal Code, § 6.02 (1962), Missouri Proposed Criminal Code, § 2.010 (1973).
¶12The United States Supreme Court recently expressed its disapproval of mandatory sentence statutes in Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).
¶13*441The flexibility recognized as essential to any rational sentencing system seems best administered by the judiciary because it is that branch that has first-hand knowledge of the particular circumstances of a specific case. The inherent powers of the judiciary have been defined in a functionally-oriented manner in past Missouri cases, see e. g., State v. Becker, 351 Mo. 769, 174 S.W.2d 181, 183 (1943); Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977, 981 (1937). Such a pragmatic approach to the division of governmental powers should continue and should lead to the characterization of the granting of probation as an inherent power of the judiciary. Once it is determined that the facts of the case dictate incarceration the mandatory sentence statute may become applicable but an initial determination of the appropriateness of incarceration must be required. In conclusion, I share the view of the Supreme Court of Idaho as expressed in State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), a case holding mandatory sentences unconstitutional as a usurpation of judicial power:
“Our system of laws, indeed, hopefully our civilization, has undergone a persevering evolution toward enlightenment. A judge is more than just a finder of fact or an executioner of the inexorable rule of law. Ideally, he is also the keeper of the conscience of the law.” (Id. at 251)
¶14I must also express my fervent disagreement with the result reached by the majority on the issue of cruel and unusual punishment. A sentence of ten years imprisonment for the second sale of a small quantity of marijuana is incredibly disproportionate to the conduct for which it is being punished. As noted by the appellant in his brief, for example, many violent crimes are punished much less severely in Missouri, see also H. Eisberg, “Missouri Needs Marijuana Reform,” supra. My disagreement on this issue, however, extends only to the result and not to the majority’s reasoning as to the legally logical, if philosophically unconscionable, consequence of the decision in State v. Burrow, 514 S.W.2d 585 (Mo.1974); cf., State v. Rao, No. 19961, Superior Ct. Conn. (1976); People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972); People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407 (1971).
¶15Because I believe our court lacks jurisdiction in this matter, I would certify this cause to the Missouri Supreme court.