(dissenting):
I respectfully dissent. The majority opinion overrides the plain language in Utah Code Ann. § 76-l-402(3)(a). This court has previously stated, “Where statutory language is plain and unambiguous, this Court will not look beyond to divine legislative intent. Instead, we are guided by the rule that a statute should be construed according to its plain language.” Allisen v. American Legion Post No. 134, 763 P.2d 806, 809 (Utah 1988). The plain language of section 76-l-402(3)(a) indicates that if an offense “is established by proof of the same or less than all the facts required to establish the commission of the offense charged” the defendant may not be convicted of both the offense and an offense so included. It is not possible to convict a defendant of killing while commit-ing an aggravated robbery without proving the facts of the felony of aggravated robbery. The United States Supreme Court reached a similar result in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). “A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape.” Whalen, 445 U.S. at 693-94, 100 S.Ct. at 1438-39.
It is the duty of this court to give effect to the plain meaning of language the legislature has written into law. I agree with the majority that if our legislature had considered the issue of merger in felony first degree murder cases, it would likely have intended to provide that the two offenses in a felony-murder do not merge. The wording of section 76 — 1—402(3)(a) demonstrates, however, that even if the legislature had such an intent, it did not incorporate it into the statute. The flaw in the approach of the majority opinion is that it ignores the principle that “the court has no power to rewrite a statute to make it conform to an intention not expressed.” Mountain States Tel. & Tel. Co. v. Public Serv. Comm’n, 107 Utah 502, 505, 155 P.2d 184, 185 (Utah 1945).
Finally, I disagree with the majority’s assertion that the existing statutory scheme permits a so-called “windfall” to some defendants. Under indeterminate sentencing, one first degree felony conviction results in a sentence of five years to life. It does not credit the Board of Pardons and Parole with much common sense to suggest that they do not review the actual circumstances of a criminal act (rather than the numerical “count” of the convictions) when deciding on actual time to be served. I would be content to leave the burden where the plain language of the statutes leaves it. I would reverse.