(dissenting).
I respectfully dissent.
I do not disagree with the majority’s construction of the statute involved. The legislature made its intention plain. The point at which P’differ with the majority is in its holding that the constitutional rights asserted by defendants do not apply to the proceeding provided for in § 204.410. The due process clause of the Fourteenth Amendment of the Federal Constitution is fully applicable to a sentencing proceeding. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L. Ed. 1690 (1948). I believe § 204.410 denies a defendant due process by requiring him, after conviction for delivery of a controlled substance, to prove he delivered it as an accommodation offender rather than a drug pusher.
The legislature has supplied in the sentencing provisions of the statute a presumed fact which the State is not required to prove to get a conviction, that is, the delivery was with intent to profit or to induce the recipient to become addicted to or dependent on the substance.
*900This is illustrated in the majority opinion. The court holds § 204.401(1) creates “a separate and distinct crime without regard to the purpose or motive of the deliverer.” Defendants are charged under that section. If they are convicted they may be sentenced under either § 204.401(1) (a) or § 204.410. By its terms the punishment in § 204.410 is available where the delivery was accompanied by an intent only to “accommodate another individual and not with intent to profit thereby nor to induce the recipient or intended recipient * * * to become addicted to or dependent upon the substance * * Thus, even though a conviction under § 204.401(1) would he obtained without regard to the “purpose or motive” of the deliverer, the decision as to which sentence a defendant is to receive is made to depend on that purpose or motive. Unless the defendant proves he is not a drug pusher he receives the punishment of § 204.401(1) (a) rather than the lesser punishment of § 204.410.
This statutory scheme inverts the procedure utilized in two analogous postconviction sentencing proceedings. One relates to habitual criminal charges and the other is the degree of guilt hearing under Code § 690.4 after a plea of guilty to murder.
When a defendant is charged as an habitual criminal under Code chapter 747 he is statutorily entitled to a two-stage trial. See State v. Hunley, 167 N.W.2d 645 (Iowa 1969); §§ 773.3, 785.16, The Code. He is first tried for the current offense. If found guilty he is entitled to a trial on the issue of his alleged prior convictions. The State must prove him guilty of the current offense and prove the prior convictions to a jury beyond a reasonable doubt before the enhanced habitual criminal sentence can be pronounced by the court. State v. Eichler, 248 Iowa 1267, 83 N.W.2d 576 (1957). The burden of persuasion to establish the factual basis for imposition of the habitual criminal sentence is on the State because “ * * * it is not conceivable, as matter of criminal law, that, to avoid an adverse finding, a defendant can be held to take the initiative and bring forward the evidence tending to his exculpation in respect of any fact alleged in the indictment and material to his conviction or punishment.” State v. Smith, 129 Iowa 709, 714, 106 N.W. 187, 189 (1906) (italics added); 39 Am.Jur.2d Habitual Criminals and Subsequent Offenders § 18 at 322. A jury trial does not appear to be constitutionally required on the issue of prior convictions since the issue does not involve a distinct charge of crime but goes to punishment only. The question whether a jury or the court decides the issue is one for legislative determination. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L. Ed.2d 606 (1967). Thus, when a defendant is accused as an habitual criminal, due process requires the State prove the factual basis for enhanced punishment, but jury trial of the issue is not constitutionally mandated.
Similarly, when a defendant charged with murder enters a plea of guilty, due process requires that the State have the burden of persuasion to establish a factual basis for imposition of a first degree murder sentence. State v. Harper, 220 Iowa 515, 518, 258 N.W. 886, 888 (1935); State v. Moran, 7 Iowa 236 (1858). Under Code § 690.4 this factual issue is tried to the court. State v. Martin, 243 Iowa 1323, 55 N.W.2d 258 (1952). A jury trial of the issue is not constitutionally required. 47 Am.Jur.2d Jury § 50 at 667. The basis of such procedure is explained in State v. Almy, 67 N.H. 274, 28 A. 372 (1892).
By analogy to these two postconviction sentencing proceedings I believe due process requires that the State be required to establish the factual basis for imposing the greater punishment of § 204.401(1) (a) on one convicted of delivery of a controlled substance under § 204.401(1). Due process demands that the State establish the basis for taking a defendant’s liberty. The ma*901jority concedes that a defendant’s purpose or motive is the determinative fact as to whether he is to be sentenced under § 204.-401(1) (a) or § 204.410. Yet, simply because this fact is established after conviction rather than before conviction the majority denies defendant due process. I do not think due process permits a different rule as to enhanced punishment in this situation than in habitual criminal or murder prosecutions.
The provision of § 204.410 which purports to assign the burden of persuasion to a defendant to prove he is not regularly engaged in drug traffic simply because he is convicted of a single delivery offense is patently unconstitutional. Although my conclusion is based on the ground that the issue is one of material fact essential to the infliction of punishment as in habitual criminal proceedings and murder case degree of guilt hearings, I believe defendants’ contention the provision infringes their privilege against self-incrimination is equally valid. Cf. State v. Hansen, 203 N.W.2d 216, 220 (Iowa 1972).
I am not persuaded due process requires a jury trial of the issue involved in § 204.-410 proceedings. The issue involves establishment of a factual basis for enhanced punishment rather than proof of a crime. I do not read the statute like trial court as establishing two separate crimes or even one bifurcated crime. A jury trial would be required if it did. However, as in other true enhanced punishment proceedings I do not believe trial by jury is constitutionally compelled. See 47 Am.Jur.2d Jury § 17 at 639-640 (“Under constitutional provisions the right of trial by jury is preserved inviolate only as to the class of cases in which that right was enjoyed before adoption of the Constitution. In all other cases the legislature may provide for a hearing or trial without a jury.”).
Accordingly, I believe § 204.410 denies a defendant due process only insofar as it puts the burden of persuasion on the defendant as to avoidance of enhanced punishment. I would hold it unconstitutional in that respect only. In so doing it would not be necessary to strike the entire section. The legislature has provided in § 4-12, The Code:
“If any provisions of an Act or statute or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act or statute which can be given effect without the invalid provision or application, and to this end the provisions of the Act or statute are severable.”
Section 204.410 is invalid only insofar as it puts the burden of persuasion on the de-' fendant. The Constitution overrides that provision and places the burden on the State. This is not “judicial legislation.” Constitutional rights are available without statutory repetition. 16 Am.Jur.2d Constitutional Law § 149 at 354; cf. Forst v. City of Sioux City, 209 N.W.2d 5 (Iowa 1973) filed separately this date.
In sum, I believe the legislation is valid except insofar as it requires a convicted defendant to prove his entitlement to the reduced penalty of § 204.410, in which respect due process is offended, but the legislation may be salvaged in keeping with remaining legislative intent by engrafting on it the constitutional requirement that in order to establish a basis for the greater sentence of § 204.401(1) (a) the State must prove to the court beyond a reasonable doubt that a defendant who invokes § 204.-410 delivered the controlled substance with an intent to profit thereby or to induce the recipient to become addicted to or dependent on the substance. Otherwise the defendant must be sentenced under § 204.410.
In accordance with these views I would annul the writ in part and sustain it in part.
*902RAWLINGS and REYNOLDSON, JJ., join in this dissent.