dissenting:
I respectfully dissent from the majority opinion filed in this
In Townsend v. Burke, 334 U.S. 736 (1948), the United States Supreme Court remanded for re-sentencing where it appeared that the defendant was sentenced “on the basis of assumptions concerning his criminal record which were materially untrue,” and where the High Court declared: “Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.” 334 U.S. at 741. The High Court made it clear that a sentence cannot be predicated on false information.
In each of the cases cited and relied upon by the respondent, it was necessary for the appellate court to examine the record and to structure therefrom an opinion that the sentence given by the trial judge had been influenced either by erroneous material or a misinterpretation of accurate material resulting in a violation of the convicted person’s right to due process. Here we face no such task because the trial judge has acknowledged his misconception of a policy of the parole board and has admitted that upon that misconception he gave the appellant a sentence of four years rather than the one year that he would have given.
It is not the misinformation that results in the denial of due process, but the attitude of the trial judge at the time of sentencing either based upon, or colored by, misinformation or a *148misinterpretation that results in an error of constitutional magnitude.
This is not a case of judicial invasion into the legislative and executive fields in contravention of Article 3, Section 1 of the Nevada Constitution.1 Neither is it granting a relief from punishment after incarceration, which is an executive function authorized by the legislature and performed by the state board of parole commissioners, (NRS 213.107-213.160), or by the state board of pardons commissioners. (NRS 213.010-213.100.)
Unlike the facts in State v. District Court, 85 Nev. 485, 457 P.2d 217 (1969), where the district judge did not follow the statutory provisions governing probation and attempted to suspend part of a prison sentence and place the defendant on probation after he had served a period of time in prison, the district judge here followed the statutory provisions and corrected a sentence which he believed violated the appellant’s right to due process. NRS 177.320.2 See also, Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967).3
The facts in this case are more akin to those found in Crowe v. State, 194 N.W.2d 234 (S.D. 1972), where the trial judge misread an accurate F.B.I. report. There, although the post-conviction court found no error in the trial court’s sentence, the appellate court, relying on United States v. Tucker, 404 U.S. 443 (1972), found that the petitioner’s right to due process had been violated, and remanded for sentencing.4
*149Although a district court judge may exercise a wide discretion in the sources and type of information used to assist him in determining an appropriate, just and enlightened sentence, Williams v. New York, 337 U.S. 241 (1949), the sentencing procedure is not immune from scrutiny under the Due Process Clause.5 See Townsend v. Burke, supra.
“. . . [Mjaterial false assumptions as to any facts relevant to sentencing, renders the entire sentencing procedure invalid as a violation of due process.” United States v. Malcolm, 432 F.2d 809, 816 (1970). United States v. Tucker, supra; Townsend v. Burke, supra.
I would affirm the judgment of the district court.
Article 3, Section 1: “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases herein expressly directed or permitted.”
NRS 177.320: “The jurisdiction of the district court in post-conviction relief hearings to find in favor of a petitioner is limited to those cases in which the court finds that there has been a specific denial of the petitioner’s constitutional rights with respect to his conviction or sentence.”
In Warden v. Peters, supra, this Court, in announcing the rule that a trial court possessed the power to set aside a judgment of conviction after a plea of guilty, and commencement of sentence in a proper case for correction of sentence, said: “The fact remains that courts which make a mistake in rendering a judgment which works to the extreme detriment of the defendant will not allow it to stand uncorrected.” 83 Nev. at 301, 429 P.2d at 551.
In United States v. Tucker, supra, the High Court said: “. . . we deal here, not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude.” 404 U.S. at 447.
Nevada Constitution, Article 1, § 3. The Fifth Amendment of the United States Constitution made applicable to the States by the Fourteenth Amendment.