(concurring in part and dissenting in part). I agree with the majority that there is a conflict between the insanity defense statute, MCL 768.21a; MSA 28.1044(1), and the guilty but mentally ill (GBMl) verdict statute, MCL 768.36; MSA 28.1059, as stated by the majority. I also agree that it is up to the Legislature to amend or repeal these statutes to eliminate the conflict and that this Court cannot rewrite the statutes to avoid the conflict.1
However, I am concerned about the majority’s conclusion that “[w]e could restore harmony to the insanity/GBMl scheme only if we were to hold that the jury should return a GBMl verdict when it finds that (a) the prosecutor proved the defendant’s guilt beyond a reasonable doubt; (b) the defendant proved mental illness or mental retardation by a preponderance of the evidence; and (c) the defendant failed to prove legal insanity by a preponderance of the evidence.” Ante, at 507-508 (emphasis added). Í am not convinced that this is the only manner that the statutes could be har*510monized. I note that the Illinois Legislature amended its GBMI verdict statute, in light of People v Fierer, 124 Ill 2d 176; 529 NE2d 972 (1988), by removing only the requirement that the prosecutor prove lack of insanity beyond a reasonable doubt. Further, the Legislature could repeal either or both of the statutes if it chose to do so.
Moreover, the effect of this attempt to harmonize the statutes is to place the burden of proof on a criminal defendant with respect to part of a gbmi verdict. Because “guilty but mentally ill” is a verdict leading to a certain disposition, shifting the burden of proving mental illness, an element of the gbmi verdict, to a defendant could well be unconstitutional. Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977); In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970).
Because the defendant has died and no trial ever occurred in this case, this opinion is essentially an “advisory” opinion, and it is within the province of the Legislature to redraft the statutes to avoid any conflict. For these reasons, I would not attempt to harmonize the statutes as the majority attempts to do and would leave to the Legislature its task of amending the statutes. For now, it is up to our able trial judges to fashion a proper jury instruction.
The majority statement, ante, at 486, that “our due regard for the doctrine of separation of powers precludes our invading the province of the Legislature by inferring that any statute has been implicitly amended, repealed, or partially repealed” is somewhat overstated. Although repeals by implication are not favored and courts should avoid finding a repeal by implication if there is any other reasonable construction, a repeal by implication may be found when the conflict between two statutes is clear, or when a subsequent law clearly intends to occupy the entire field covered by a prior enactment. Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 575-577; 548 NW2d 900 (1996). Thus, repeals by implication may be utilized in certain circumstances and it is certainly within the province of the judiciary to interpret statutes.