dissenting.
I am unable to agree with the majority’s position despite the fact that there exists a substantial body of authority from other jurisdictions supporting their position on this discrete point of law. Nevertheless, I wish to focus upon traditional concepts of statutory interpretation and due process under Idaho law.
Idaho Code Section 67-513 is entitled Repeal of penal law and unequivocally states that the “repeal of any law creating a criminal offense does not constitute a bar to the prosecution and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such prosecution and punishment is expressly declared in the repealing act.” Emphasis mine. I must presume that the Idaho Legislature was well aware of this savings clause at the time it enacted the 1992 repeal and amendment of the burglary statutes. So, too, I presume the Legislature could have extended the ameliorative effect of a potential “lesser sentence” on all pending eases as of the effective date of enactment had it so chosen, just as it did relative to Idaho Code Section 37-2748 in 1971. See State v. Pontier, 95 Idaho 707, 715, 518 P.2d 969, 977 (1974).
The procedural posture of this ease also offers a consternation of fortuitous anomalies. The defendant committed the crime of Burglary in the First Degree in November of 1990. He pled guilty on April 20, 1992, with sentencing first set for May 21, and then reset twice thereafter at the behest of his counsel to June 9 and finally July 1,1992, the *268effective date of the new law. The defendant has already appealed this sentence once, albeit on different grounds, which sentence was affirmed in 1993. His Rule 35 motion was filed on November 27, 1996. I wonder how many other cases are out there with a similar scenario; or how many other similarly situated defendants might claim ineffective assistance of counsel for not seeking a continuance on pending sentencings until July 1, 1992, or otherwise bemoan the fact that they didn’t abscond until that date.
Moreover, at the time defendant committed his offense, Idaho had long preserved the common law distinctions between First and Second Degree Burglary. In 1992 the Idaho Legislature did away with this distinction and split the difference between fifteen and five to ten years as a compromise punishment for both varieties of burglary. Yet, the fact remains that the old law carried an additional material element for the offense of Burglary I (i.e., nighttime), such that the amendment did more than just lessen the penalty.
In conclusion, I would give plain meaning to the language that “the repeal of any criminal law shall not constitute a bar to ... punishment of an act already committed in violation of the law so repealed,” and to the time-honored notion that criminal laws are not retroactive and relate back to the date when the offense was committed.
Accordingly, I respectfully dissent and would affirm the decision of the learned trial judge in denying the motion for correction of an illegal sentence.