dissenting:
I disagree with the majority’s interpretation of the phrase “extraordinary mitigating or aggravating circumstances,” in the context of this statute. When § 18-1-105(6), C.R.S. 1973 (1979 Cum.Supp.), is viewed in relation to the total sentencing structure set forth in the Criminal Code, which includes the habitual criminal provisions of § 16-13-101, C.R.S. 1973 (1979 Cum.Supp.), I believe that it reflects the General Assembly’s intent to confine the breadth of the disputed phrase to only the circumstances surrounding the commission of the crime which is the basis of the sentence and to exclude therefrom the past criminal history of the perpetrator. This intent is further evidenced by the language of § 18-l-105(l)(b), C.R.S. 1973 (1979 Cum. Supp.), outlining the factors to be considered by the trial court in imposing sentences within the presumptive range. In that section, the “record of the offender” is distinguished from “all aggravating or mitigating circumstances surrounding the offense,” and the two are listed as independent factors to be considered.
The General Assembly has, for a considerable period of time, vested the problem of recidivism in the hands of the prosecutors, under § 16-13-101, C.R.S. 1973. The interpretation placed on § 18-1-105(6), C.R.S. 1973 (1979 Cum.Supp.), by the majority is an invasion of the discretionary power placed in the office of the District Attorney to deal with this problem.
I am further concerned that the rule announced by the majority allows for the lengthening of sentences beyond the presumptive ranges on the basis of the past record of the perpetrator without observing the procedural and constitutional protections regarding the pleading and proof of the past convictions which are built into § 16-13-101, C.R.S. 1973 (1979 Cum.Supp.).
I would disapprove the sentence.