dissenting.
I disagree with the majority concerning the availability of a fixed sentence for a term of years less than life in a first degree murder case. Also, I am not convinced that uncertainty or confusion had any influence on the length of David Wilson’s sentences, therefore I cannot see those circumstances as adequate legal grounds for vacating the sentences. I respectfully dissent.
By its 1977 amendment to I.C. § 18-4004, the Legislature said that a person guilty of first degree murder “shall be punished by death or by imprisonment for life.” This mandatory language is plain and direct. It deserves to be given literal treatment if the result is reasonable and in harmony with other statutory provisions on the subject. State ex rel. Evans v. Click, 102 Idaho 443, 631 P.2d 614 (1981); Sampson v. Layton, 86 Idaho 453, 387 P.2d 883 (1963). It means simply that, if imprisonment is to be the punishment, the sentence must be for life. It may be either a fixed or indeterminate life sentence. With an indeterminate life sentence, other statutes come into play which define parole eligibility and give the commission of pardons and paroles the authority to determine the actual length of confinement. Those statutes have little or no applicability to a fixed sentence and we need not look to those statutes to determine the meaning of a fixed sentence.
The same statute that authorizes a choice between either death'or life imprisonment for first degree murder authorizes a sentence of imprisonment of “not less than ten (10) years and [it] may extend to life” for murder in the second degree. I.C. § 18-4004. The sentence for second degree murder may be either an indeterminate or a *678fixed sentence, but in either event the upper and lower limits are set by statute. Such limits are typically set by statutes relating to other crimes. We recognize that those limits apply to any fixed or indeterminate sentence that is given. Similarly, we should recognize the limitations set by the statute for first degree murder. Furthermore, it is obvious that the Legislature did not intend that the punishment for second degree murder would be the same as that for first degree murder. Yet the construction placed on I.C. § 19-2513A by the majority creates this anomalous result. Under the majority opinion, the penalty for first degree murder is either death or ten years to life. The Legislature plainly did not intend this result, but it can be avoided by recognizing that I.C. § 18-4004 does not authorize a fixed sentence for less than life in a first degree murder case.
The majority suggests that the legislative intent is distorted in some cases by allowing a court to bar parole for a less serious crime, while preventing the court from denying parole for a more serious crime. Under my view of the statutes, however, there is no such distortion. For the more serious crime, the judge can bar parole for the entire lifetime of the offender by choosing a fixed life sentence. For the less serious crime, the judge can bar parole for a specified time with a fixed sentence from ten years to life, or he can allow the possibility of parole by choosing an indeterminate sentence. This is a consistent result. Only if we compare parole eligibility under a fixed sentence for second degree murder with parole eligibility under an indeterminate sentence for first degree murder do we get the distortion which the majority tries to avoid. Yet this result is entirely possible under the majority opinion.
As noted above, there is another reason for my dissent in this case. Even if the district judge could have imposed a fixed sentence for a term of years less than life for the first degree murder conviction, there would still be no grounds for vacating the sentences. Nothing in the record of this case suggests that Judge Lodge wanted to impose some sentence for a term of years less than life on the first degree murder charge. Moreover, the record indicates he held the belief, correctly, that a fixed life sentence would not permit parole eligibility in thirty years.
There were two serious crimes in this case, both demanding a heavy penalty. A life sentence was authorized for both the robbery and the murder. If the court had desired to give David a fixed sentence for a number of years in prison — less than life— he could have done so. This experienced judge was well aware that he could have given a fixed sentence for robbery, coupled with a indeterminate life sentence for the murder, for example. By doing so, he could have effectively assured that David Wilson would remain in prison, without eligibility for parole, for twenty, twenty-five, thirty years or more. Yet the fixed sentence would be less than life. The combinations available permitted the district judge great flexibility in pronouncing sentence for any fixed number of years that he might have chosen. He could do this because the two crimes were closely interwoven. In fact, but for David’s participation in the robbery, he could not have been convicted of the murder which was the act of his brother. These circumstances allowed the district judge to tailor the overall sentence by an appropriate combination of sentences. Thus I do not see that he was constrained by any uncertainty in the law itself.
It is not necessary, now, in this appeal to decide the issue as to whether the fixed life sentence is excessive. However, to be candid about my position, I express some personal reservations about the imposition of a fixed life sentence without the possibility of parole in this case. Here the evidence of David’s direct participation in the killing was scant and there was a reasonable doubt concerning David’s intent to cause a death. At some time in the future it might become appropriate to shift the emphasis of the sentence from the protection of society and punishment to a consideration of David’s rehabilitation into society. A fixed sentence for life will not permit that, unless the present sentence is commuted at some *679future time. There is that possibility. As Judge Lodge noted, the commission of pardons and paroles now has authority to commute a fixed, as well as an indeterminate sentence. The defendant is not without hope that he can eventually earn his release from confinement.
My reservation about the sentence does not forestall my dissent. However, I would urge the Legislature to consider whether district judges should be given authority to impose a fixed sentence for a number of years, less than life, in first degree murder cases. The Legislature should have the final say here. They can benefit the administration of justice by bringing the judicial debate on this subject to an early end.