dissenting.
I respectfully dissent. I believe that the majority has, in reasoning to its conclusion, subordinated the constitutional mandate against cruel and unusual punishment to the legislative power to establish the range of punishment for any given offense. I do not quarrel with the legislature’s authority to establish a statutory range of punishment but it is erroneous, in my opinion, to equate review of sentences with review of statutory ranges of punishment. Except in circumstances where the constitutionality of the statute prescribing the punishment range is challenged, judicial review of sentences assessed is an examination, not of the statute defining punishment, but of the manner in which the statute was applied. In other words, such review is to determine whether or not the body assessing the punishment, whether it be the court or jury, has applied the punishment statute in violation of the constitutional mandate against cruel and unusual punishment. In light of this constitutional prohibition a review of the exercise of the discretion of the body assessing punishment in no way infringes upon the power of the legislature to estab*202lish penalties and punishments.1 See, State v. Mitchell, 563 S.W.2d 18, 26 (Mo. banc 1978).
Proceedings pursuant to Rule 27.26 are for the purpose of adjudicating inter alia, questions of deprivation of federally guaranteed constitutional rights. State v. Keeble, 427 S.W.2d 404, 406 (Mo.1968). Included in these guaranteed rights is the right to be free from suffering cruel and unusual punishments. Mo.Const. Art. I, § 21. A sentence is cruel and unusual if it is grossly disproportionate to the gravity of the crime, [See, Coker v. Georgia, 433 U.S. 584, 603, 97 S.Ct. 2861, 2871, 53 L.Ed.2d 982 (1977) (Powell, J., concurring and dissenting)] if it is greatly in excess of sentences imposed in other jurisdictions for the same offense, (Id. at 593-94, 97 S.Ct. at 2866-2867) and is disproportionate to sentences imposed upon other criminals in the same jurisdiction. See, Weems v. United States, 217 U.S. 349, 380, 30 S.Ct. 544, 554, 54 L.Ed. 793 (1910); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 1148-49, 63 L.Ed.2d 382 (1980) (Powell, J., dissenting).
In the present case the movant was sixteen years old when he pled guilty of selling small amounts of marijuana and amphetamines.2 No acts of violence were involved in either sale.
Movant had no prior criminal record and was gainfully employed. The offenses, when viewed in this context, do not warrant such harsh sanctions.
Other jurisdictions have found lighter sentences for the sale of marijuana to be excessive despite the fact that they were within the statutory range. In People v. Keating, 2 Ill.App.3d 164, 270 N.E.2d 164 (1971), the court held that a sentence of from 10 to 20 years for the sale of marijuana was excessive in view of the fact that it was defendant’s first narcotics offense, he was seventeen years old and employed. Id., 270 N.E.2d at 170. The court in State v. Keck, 187 Neb. 794, 194 N.W.2d 186, 197 (1972) held concurrent sentences of from two to five years for the sale of marijuana and LSD and possession of LSD to be excessive. The court in Kolke v. State, 493 P.2d 854 (Okl.Cr.1972) found that despite the fact defendant had sold marijuana twice on the same day, seven years imprisonment and $1,000 fine was excessive punishment. Id. at 856. Even in our review of cases where sentences for the sale of marijuana have not been found excessive we are able to locate only one other case wherein such a spectacular sentence for the sale of marijuana has been imposed.3 The average sentence imposed in other jurisdictions for this type of offense is approximately ten years.4
A survey of sentences imposed for other crimes in Missouri reveals that for the offense of assault with the use of a dangerous instrument a defendant could receive a maximum of 20 years imprisonment. § 565.050, RSMo 1979. Rape, (§ 566.030), sodomy, (§ 566.060) aggravated sexual as*203sault, (§ 566.040) first degree arson, (§ 569.-040) first degree burglary, (§ 569.160) second degree robbery, (§ 569.030) all carry a penalty of 10 to 20 years imprisonment. Assault with a dangerous weapon, (§ 565.-050) kidnapping, (§ 565.110) aggravated rape, (§ 566.030) and murder (§ 565.008) all carry sentences of not less than 10 years to life imprisonment.5 The possible punishment for selling marijuana is not less than five years to life imprisonment. § 195.200.-1(4), RSMo Supp.1980. The possibility (and in the present case, the reality) of extremely harsh punishment for the sale of marijuana does not bear the same relationship to society’s goals of protection of property interests and maintenance of order as does harsh sentences imposed for violent crimes.
I believe that in making their decision to reinstate the 50 year sentence my colleagues may have considered movant’s subsequent convictions for sale of hashish and the fact that although the defendant pled guilty to two offenses he was initially charged with a total of six offenses.
A probation revocation hearing is not a criminal proceeding. Reiter v. Camp, 518 S.W.2d 82, 87 (Mo.App.1974). The purpose of such a hearing is not to determine whether the probationer is guilty of the allegations which may possibly result in revocation of his probation but is for the purpose of determining whether or not termination of probation is “warranted by the conduct of defendant and the ends of justice.” § 559.036, RSMo 1979. The court may determine, as it did in this case, that the evidence that the probationer had committed a new offense was conclusive. The probationer does not, however, stand convicted of the offense by virtue of the trial court’s conclusion during the course of the hearing that the probationer committed the offenses. He is presumed innocent until he either pleads guilty or is convicted. Any assumption of guilt of new offenses as a basis for imposing an extraordinarily lengthy sentence for past convictions after violation of probation is clearly erroneous. The same reasoning would also apply to any consideration of the four charges in the indictment to which movant did not plead guilty. He must also be presumed innocent of these charges as they were dismissed subsequent to his pleas of guilty to sales of marijuana and amphetamines. After eliminating all other charges the fact remains that a young first offender, sixteen years old, is faced with the possibility of spending a total of 55 years in jail for having sold approximately 1.5 ounces of marijuana and 100 amphetamine pills. A sentence so disproportionate to the gravity of the offense committed shocks the moral sense of all reasonable men as to what is right and proper under these circumstances and is, therefore, unconstitutionally cruel and unusual. State v. Mitchell, 563 S.W.2d 18, 26 (Mo. banc 1978). Such disproportionate sentences result in little more than inmate unrest in the prisons. See, United States v. McKinney, 466 F.2d 1403, 1414 (6th Cir. 1972).
Judge Lasky properly applied this constitutional principle enunciated in Mitchell and I would affirm his order reinstating movant’s ten year sentence.
. Note that the courts have not been reluctant to review sentencing procedures where the complaint was based on grounds other than the allegation that the sentence was cruel and unusual. See, e. g., Phillips v. State, 486 S.W.2d 237, 238-39 (Mo.1972) (wherein defendant claimed that inaccurate statements made by the prosecutor to the judge prejudicially influenced him during the sentencing procedure; State v. Jackson, 476 S.W.2d 540, 542 (Mo.1972) (wherein defendant claimed that his sentence was a result of the prejudicial influence of a “rap” sheet considered by the judge during sentencing proceedings).
. Defendant testified that he sold approximately three fourths of an ounce of marijuana and 100 amphetamine pills. He was charged with selling 38.5 grams of marijuana (approximately 1.5 ounces) and 100 tablets of amphetamines.
. White v. State, 495 S.W.2d 903, 905 (Tex.Cr.App.1973) (60 years for sale of marijuana). The Texas courts adhere strictly to the theory that sentences imposed within the statutory range cannot, as a matter of law, be cruel and unusual in the constitutional sense. See, e. g., Rodriquez v. State, 509 S.W.2d 625, 627 (Tex.Cr.App.1974) (1,500 years imprisonment for sale of heroin); Mabry v. State, 492 S.W.2d 951, 954 (Tex.Cr.App.1973) (999 years for murder); Sills v. State, 472 S.W.2d 119, 120, (Tex.Cr.App.1971) (1,000 year sentence for robbery and assault.
. Messelt v. State, 351 So.2d 636, 639 (Ala.Cr.App.1977) (nine years); Fite v. State, 513 P.2d 1396, 1398 (Okl.Cr.1973) (ten years); McCormick v. State, 279 So.2d 596, 599 (Miss.1973) (eight years).
. 558.011, RSMo 1979.