dissenting.
I agree with the majority that the trial court erred in not granting defendant’s request for the court to assess the punishment. I would not construe State v. Hunter, 586 S.W.2d 345 (Mo. banc 1979), as broadly as the majority. Rather, Hunter should be confined to its facts. I further disagree with their conclusion the error was not prejudicial. Therefore, I respectfully dissent.
I.
The day before the trial began, defense counsel hand-delivered to the prosecuting attorney’s office defendant’s written request that, “pursuant to Section 557.036, R.S.Mo.1981, ... the Court assess the punishment in case of a finding of guilt.” On the morning of trial, in chambers, the written request was brought to the attention of the trial judge. In response to defense *400counsel’s request for a ruling on the request, the trial judge said:
“The Court has indicated that motion is filed and has deferred its ruling on the merits of the motion and reserved its ruling and is cautioning and advising counsel for both sides, they are free to qualify the jury on the issue of punishment. The Court is uncertain what its ruling is going to be but is presently inclined to deny the motion, most probably will deny the motion but I’m not making a ruling at this point.”
As the majority notes, a trial judge does not have discretion to either grant or deny the request. A timely, written request must be granted.
The statute provides for the request to be made “prior to voir dire.” The reason for this timing is apparent. In voir dire, attorneys often qualify the jury on the range of punishment. If the jury is not going to assess the punishment, the range of punishment is not relevant or material.
Here, the trial court not only did not sustain the request, it advised “counsel for both sides, they are free to qualify the jury on the issue of punishment.” The State took advantage of the trial court’s advice. The State told the jury the range of punishment, and verified that all the jurors could consider the entire range of punishment. Defense counsel did not mention the range of punishment.
At the conference on instructions, the defendant’s request was brought up again. The trial judge said he had “reviewed and continued to consider the motion.” Continuing, he said
“The Court expressed its prior reservations about that motion and now conditionally grants the motion of Defendant but nevertheless intends and authorizes and directs that the issue of punishment be submitted to the Jury pursuant to Paragraph 5 of Section 557.036, and the Court intends to treat that as an advisory verdict and intends to assess the punishment notwithstanding whatever punishment the Jury may assess.”
Defense counsel objected to the court’s instructing on the punishment. Counsel told the court the granting of the request “is a mandatory requirement, and I think it is therefore improper to instruct the Jury on punishment.”
Contrary to the trial court’s statement that punishment may be submitted pursuant to § 557.036.5, that section directs a trial court not to seek advisory verdicts. The section is clear: “The court shall not seek an advisory verdict.” 1 (emphasis added).
When the trial judge said which instructions and verdict forms he was going to give, defense counsel again objected. Defense counsel stated, “We object to Instruction 5 also for the reason that it contains starting with the words ‘If you do find the Defendant guilty of involuntary manslaughter,’ subsequent language dealing with punishment which in the view of our pre-voir dire motion under Section 557, we believe to be inappropriate. We object to the form of verdict which sets forth the option for punishment for the reasons given.”
Defendant’s motion for new trial properly preserved her objections. It was overruled. At sentencing, the trial court said:
“I have been requested by the Defense to undertake the sentencing in the event the Defendant was found guilty, and in *401an effort to gain consensus of the conscience of the community, I submitted a punishment to the Jury in the event they found the Defendant guilty. The jury in an advisory capacity said six months imprisonment and a fine to be determined by the Court.
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It’s my unpleasant obligation and duty to sentence her to imprisonment for a period of six months and follow the Jury’s recommendation. For taking the life of another, six months is insignificant, and we have this freshly convicted person in front of me, I would have had to consider imposition of a more severe punishment up to seven years, I think is the punishment, but the Jury had compassion, as I do, for the Defendant and I also have compassion for the little girl who isn’t here anymore, and so Mary Burke stands convicted and under the law is susceptible to punishment.” (emphasis added).
II.
“The court shall instruct the jury as to the range of punishment ..., unless (1) The defendant requests in writing, prior to voir dire, that the court assess the punishment in case of a finding of guilt.” § 557.036.2, RSMo 1986.
This statute, as stated in the majority opinion, “[sjensibly read”, prohibits a court from instructing the jury on the range of punishment upon defendant’s timely, written request. At 394. No dispute exists as to that issue. Rather, the question is what effect is given to a trial court’s violation of this statute.
Prior Missouri cases give us guidance. “[Sjtatutes should be construed so as to give effect to legislative intent and avoid absurd and meaningless results.” City of St. Joseph v. Hankinson, 312 S.W.2d 4, 10 (Mo.Div.2 1958). Yet, as the majority recognizes, applying prior case law “effectively destroys the purpose of the statute.” At 396.
“[I]t is presumed that the legislature does not enact meaningless provisions.” Bartley v. Special School Dist. of St. Louis City, 649 S.W.2d 864, 867 (Mo. banc 1983). If § 557.036.2 can be violated with impunity, the provision is meaningless. “The General Assembly is never presumed to have committed a useless act.” State v. Bachman, 675 S.W.2d 41, 45 (Mo.App.W.D.1984).
III.
The majority believes two cases are controlling, State v. Hunter, 586 S.W.2d 345 (Mo. banc 1979) and State v. Wood, 662 S.W.2d 876 (Mo.App.W.D.1983), and therefore they “are constrained to find no prejudice occurred.” At 396. The holding in those cases does not require or authorize this court to say the General Assembly “committed a useless act.” Bachman, 675 S.W.2d at 45.
Neither Hunter or Wood involve a request by a defendant that the court, rather than the jury, assess punishment. In Hunter, a case tried before the effective date of The Criminal Code, defendant was charged with stealing as a second offender, pursuant to § 556.280, RSMo 1969.
At that time, the first edition of MAI-CR was in effect. Pursuant to applicable Notes on Use to MAI-CR, the trial court’s instructions included the range of punishment. The jury found defendant guilty and assessed his punishment at one year. Thereafter, acting under the Second Offender Act, the trial court assessed a five year sentence.
Hunter contended the inclusion of the range of punishment in the instructions misled the jury to believe he would serve only the time it assessed. Hunter, 586 S.W.2d at 347. Hunter’s arguments were rejected.
Two significant comments appear in Hunter. First, “the trial court had adhered strictly to the ‘clear’ directive” of the applicable MAI-CR Notes on Use. Id. As a “court of error”, an appellate court is hard pressed to say a trial court errs when it follows the applicable Notes on Use and does not violate any statute.
*402Second, the Hunter court recognized the misleading nature of the instruction, and suggested “amendment of the new instructions may be in order to avoid any confusion.” Hunter, 586 S.W.2d at 349. The court’s opinion concludes by asking its committee on pattern criminal charges and instructions to “review the applicable instructions in light of the views set forth in this opinion.” Id. Such a request is not a ringing endorsement of the applicable instructions.
Four years later, our Western District colleagues decided Wood. Wood was charged with assault as a prior offender. At the time of his trial, MAI-CR 2d 2.60 and its Notes on Use mandated that the jury be instructed on the range of punishment. However, the General Assembly, in 1981, had amended § 557.036. The amendments provided that the jury was not to be advised of the range of punishment.
Between September 28, 1981, the effective date of the amendments to § 557.036, and June 1, 1983, the date when the supreme court withdrew MAI-CR 2d 2.60, “trial courts were confronted with the dilemma of a conflict between MAI-CR2d and the statute.” Wood, 662 S.W.2d at 878. In Wood, the trial court chose to follow MAI-CR 2d 2.60.
The Wood court, as does the majority here, said it was “constrained” by Hunter to hold the erroneous instruction was not prejudicial. Id. As in Hunter, the trial court followed the applicable supreme court instructions and no trial court error was found.
Given the instructional dilemma existing in Hunter, its holding and teaching should be confined to its facts. Wood, which follows Hunter, should likewise be so confined. Those cases should not be used as authority to emasculate the statutory right of a defendant to have the trial court assess punishment.
I recognize the rationale set forth in Hunter that a jury is presumed to follow instructions and to therefor consider guilt before it reaches the punishment factor, if applied here, supports the majority position. In the context of a criminal trial, I find it difficult to apply such a ritualistic approach.
The jury has all instructions read to it at once and receives them all together. It is unrealistic to conclude that a jury having difficulty agreeing on guilt will not, as a means of compromising that difficulty, turn to the issue of punishment in order to arrive at a verdict.
One of the reasons for requesting sentencing by the trial court is to prevent just such a compromise. The Hunter rationale is a denial that compromise verdicts in criminal cases such as this exist. I am unable to accept that denial. Erroneously allowing a jury to consider punishment where the defendant has requested court sentencing denies a defendant the opportunity to prevent a compromise verdict on guilt and is presumptively prejudicial.
Here, the trial court deviated from following MAI-CR 3d 304.08 and its Notes on Use. “Any deviation from the approved instructions is presumed prejudicial unless the contrary is clearly shown.” State v. Petary, 781 S.W.2d 534, 542 (Mo. banc 1989). The “burden is on a party deviating from the approved instruction to show the deviation was not prejudicial.” State v. Potter, 747 S.W.2d 300, 306 (Mo.App.S.D.1988).
A recommended punishment of six months for the killing of an infant gives at least the appearance of compromise. Nothing of record demonstrates the absence of compromise. Nor has the State, who has the burden to show the deviation was not prejudicial, sustained its burden.
In the absence of the punishment instruction, it is well possible that defendant would have been acquitted, or at least, the jury would have been unable to reach a verdict. The instruction, therefore, may well have prejudiced the defendant.
That the trial court “would have had to consider imposition of a more severe punishment” than that recommended by the jury in the absence of their recommendation does not, as the State contends, obviate the prejudice which results from a compromise of defendant’s guilt, (emphasis *403added). State v. Reed, 640 S.W.2d 188, 193 (Mo.App.W.D.1982) is not, therefore, applicable.
The State has not met its burden to show the deviation from MAI-CR 3d 304.08 and § 557.036.2(1) was not prejudicial. The presumed prejudice for violating MAI-CR 3d and § 557.036.2(1) is sufficient to entitle defendant to a new trial.
The judgment should be reversed and defendant should be granted a new trial.
. Section 557.036.5 refers only to prior, persistent, or dangerous offenders; there is no mention of defendants who make written requests. The legislative history discloses the reason.
Prior to 1981 statutory amendments, a trial court did not determine a defendant was a persistent or dangerous offender until after the defendant was found guilty. § 558.021, RSMo 1978. As to these defendants, trial courts were required to advise the jury of the range of punishment and have the jury assess the punishment. See MAI-CR 2d 2.60, withdrawn effective June 1, 1983. If a defendant was found to be a persistent or dangerous offender, the jury’s verdict was disregarded.
Such was not the case with defendants filing a written request for court assessment of punishment. In MAI-CR 2d, How to Use This Book, p. XX, the user was told that if the jury is not asked to assess the punishment, "the punishment alternatives will, of course, be omitted from the state’s verdict directing instructions." See also § 557.036.2, RSMo 1978.