specially concurring.
I concur with the majority’s conclusion that the Extended Jurisdiction Prosecution Act, found at §§ 41-5-1101 to -1105, MCA (1995), is unconstitutional. However, I conclude that it violates the prohibition against double jeopardy found at Article II, Section 25, of the Montana Constitution, by imposing multiple punishments for the same offense. Therefore, I would not reach the issue of whether it violates the youths’ constitutional right to equal protection pursuant to Article II, Sections 4 and 15, of the Montana Constitution.
Section 41-5-1104, MCA (1995), clearly provides for multiple punishments for the same offense. That section specifies that:
If a youth in an extended jurisdiction prosecution pleads guilty to or is found guilty of an offense described in 41-5-1102(l)(b), the court shall:
(a) Impose one or more juvenile dispositions under 41-5-523; and
(b) Impose an adult criminal sentence, the execution of which must be stayed on the condition that the youth not violate the provisions of the disposition order and not commit a new offense. If the youth violates the conditions of the stay or commits a new *41offense, the adult criminal sentence must be executed as provided in 41-5-1105.
(Emphasis added.)
Section 41-5-1104(a), MCA (1995), provides for imposition of those punishments established by the Youth Court Act. Subsection (b) provides for the concurrent imposition of an adult sentence which, although stayed, can be enforced at a later date.
The State contends that pursuant to our decision in State v. Zabawa (1996), 279 Mont. 307, 928 P.2d 151, and the United States Supreme Court’s decision in Missouri v. Hunter (1983), 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535, cumulative punishments for a single offense do not violate the double jeopardy clauses of either the Fifth Amendment to the United States Constitution, or Article II, Section 25, of the Montana Constitution. While that may be the interpretation attached to the Federal Constitution by the United States Supreme Court, I would not follow that reasoning when applying our own constitutional prohibition against double jeopardy for the reasons stated in Justice Leaphart’s dissent to the Zabawa decision.
As this Court noted in State v. Johnson (1986), 221 Mont. 503, 513, 719 P.2d 1248, 1254, “states may interpret their own constitutions to afford greater protections than the Supreme Court of the United States has recognized in its interpretations of the federal counterparts to state constitutions.” Furthermore, as stated by Justice Leaphart in his dissent to this Court’s Zabawa decision:
I would decline to adopt the United States Supreme Court’s interpretation of the “multiple punishment” element of the Double Jeopardy Clause in Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535. Instead, I interpret the double jeopardy clause of Article II, Section 25 of the Montana Constitution, as providing substantive protection against multiple punishments irrespective of any legislative enactments.
... [W]e do a grave disservice to the framers of the Montana Constitution when we hold that a constitutional provision means nothing more than what the legislative branch intends it to mean. Constitutional guarantees are not mere vessels to be left empty or filled at the whim of the legislative branch. Rather, they have intrinsic meaning which is independent of any legislative intent. Contrary to this Court’s characterization of the issue, the question is not whether Article II, Section 25 of the Montana Constitution *42provides “greater protection” from double punishment than does the Fifth Amendment, the question is whether it provides any protection independently of what the legislature chooses to provide.
... The double jeopardy clause in Article II, Section 25, limits the power of all branches of government, including the legislature. Whether the legislature intends multiple punishments or not, as a matter of state constitutional law, such cumulative punishment is proscribed under the double jeopardy clause.
Zabawa, 279 Mont. at 323-26, 928 P.2d at 161-63 (Leaphart, J., dissenting).
We have previously recognized that the Fifth Amendment to the United States Constitution protects against multiple punishments for the same offense, and that Montana’s corresponding right provides the same protection. See State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250. The Extended Jurisdiction Prosecution Act clearly provides multiple punishments for the same offense. It defies all principles of a constitutional system of government to suggest that the Legislature defines it own constitutional parameters. Therefore, based on the reasoning in the dissent to Zabawa, I would conclude that the Extended Jurisdiction Prosecution Act violates the prohibition against double jeopardy in the Montana Constitution and is unenforceable.
For these reasons, I concur with the result of the majority opinion, but express no view regarding the reasoning for the majority opinion.