(concurring) — While Hale, J., remains adamant that this court should order cases tried under RCW 69.33 remanded for sentencing under RCW 69.40, he has yet to cite authority for the proposition that a defendant charged and tried under one act can be lawfully sentenced under another.
In State v. Williams, 78 Wn.2d 459, 475 P.2d 100 (1970), this court said, at page 460:
Since none of the provisions of the Uniform Narcotic Drug Act apply to the appellant’s alleged act, a prosecution under the act cannot stand. State v. Zornes, supra [78 Wn.2d 9, 475 P.2d 109 (1970)]. We know of no authority for the proposition that a defendant can be tried under an act which the legislature has decreed does *552not apply to his offense and be sentenced according to the penalties of a different act under which he was neither charged, tried nor convicted.
In Weems v. United States, 217 U.S. 349, 381, 54 L. Ed. 793, 30 S. Ct. 544 (1910), the United States Supreme Court, quoting from In re Graham, 138 U.S. 461, 34 L. Ed. 1051, 11 S. Ct. 363 (1890), said that it was recognized to be
“the general rule that a judgment rendered by a court in a criminal case must conform strictly to the statute, and that any variation from its provisions, either in the character or the extent of punishment inflicted, renders the judgment absolutely void. ...”
The court has no choice but to dismiss the action.
Finley, J., concurs with Rosellini, J.