dissenting.
I, too, must dissent from the disposition of this case by the majority of the court. I join in the dissenting opinion of Justice Macy who very ably has made the case for following Wyoming precedent. Birr v. State, 744 P.2d 1117 (Wyo.1987), cert. denied sub nom., Birr v. Shillinger, 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990), may be subject to analysis and dissection, but it is sound in result and should not be so casually overruled. Where is Cassandra when the need arises?
Perhaps only a Cassandra will be heard to mourn the neglected rule of stare decisis, but it is a sad day indeed when our declarations within the same case are subject to judicial revision. If we are unwilling to take seriously what we write, how can we expect others to take us seriously?
Jones v. State, 798 P.2d 1206, 1208 (Wyo.1990) (Cardine, J., dissenting).
As a threshold matter, it must be noted that both Cook and Peterson entered, pursuant to plea agreements, pleas of guilty to the offenses of felony murder and aggravated robbery. No mention is made in the majority opinions as to how the consecutive sentences imposed became a jurisdictional defect in these cases. Our usual rule is that a plea of guilty waives all nonjurisdic-tional defects. Davila v. State, 831 P.2d 204 (Wyo.1992), and cases cited. As we said in that case:
Jurisdictional claims involve “the very power of the State to bring the defendant into court to answer the charge brought against him.” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628, 636 (1974). Jurisdictional defects include: unconstitutionality of the statute defining the crime pled to, Armijo v. State, 678 P.2d 864, 867-68 (Wyo.1984) failure of the indictment or information to state an offense, and double jeopardy. Tompkins v. State, 705 P.2d 836, 840 (Wyo.1985), cert. denied sub nom., Tompkins v. Wyoming, 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986).
Davila, 831 P.2d at 205-06.
A review of Tompkins readily discloses that the double jeopardy reference would occur only in the context of multiple prosecutions, not in the context of multiple sentencing.
Some analysis and dissection of the majority approach in this case likewise is appropriate and necessary. The point of departure in the majority opinion is that there is no clear indication of a legislative intention that the armed robbery, which serves as a predicate for invoking the felony murder statute, be punished separately from the killing. Consequently, the majority then proceeds to a second level application of the approach in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This level of analysis involves a comparison of the elements of the statutory proscriptions, as done in the concurring opinion, in order to draw an inference with respect to the existence of separate crimes. If the elements are perceived to be identical, then a presumption arises in the law that the legislature did not intend to authorize separate punishments.
The majority justifies its decision by claiming the Wyoming legislature cannot be said to have intended to punish separately this armed robbery and the murder for which the robbery serves as a predicate to the definition of the killing as the crime of first degree murder. My primary difficulty with the majority position in this case is that it attributes an intention to the legislature which is contrary to human experience. The effect of the court’s decision is that, in the context of multiple sentencing, the perpetrator is rewarded for killing the victim. This decision by the court deprecates human life and the right to be free from criminal acts. I do not agree that *1366this is an accurate appraisal of legislative intent.
As set forth in the majority opinions, the exercise of working one’s way up the ladder of larceny and robbery is fascinating, but it is even more fascinating to work one’s way up the ladder of homicide offenses. The majority example of a charge of manslaughter and aggravated robbery leading to consecutive sentencing is revealing. There is a suggestion that a multiple penalty violation could be found in such an instance, but I am satisfied consecutive sentences could be imposed for those two violations. Logic leads to the conclusion that the same would be true of second degree murder and aggravated robbery and, in such an instance, the sentencing could be for a term for life followed by the twenty-five year sentence for armed robbery. When one reaches the most serious degree of homicide, however, first degree murder, the legislative intention switches, and the majority can find no “clear indication” of a legislative intention to permit separate punishments. The majority opinion apparently concedes that, if the prosecutor had possessed the acumen to charge the murder as committed purposely and with premeditated malice, the two sentences could stand.1 No explanation is offered as to why it would be consistent with legislative intent to permit punishment for both crimes in one instance, but not in the other. In fact, the robbery alluded to in the first degree murder statute is nothing more than a predicate for the murder charge, like a prior conviction is for the invocation of the habitual criminal sentence. Cook and Peterson simply were in the status of robbers to justify the invocation of the first degree murder statute. See Evans v. State, 655 P.2d 1214 (Wyo. 1982).
The majority cites Richmond v. State, 554 P.2d 1217 (Wyo.1976), reh’g denied, 558 P.2d 509 (Wyo.1977), as explaining that “the required elements of first degree murder, premeditation, deliberation and malice aforethought, are imputed by a conclusive statutory presumption when one commits felony murder in the course of a robbery.” Op. at 1351. The question that must be addressed is why the legislature could possess an intention to authorize multiple punishments if the murder is charged as having been committed “purposely and with premeditated malice,” but would not retain the same intention when the murder is charged as having been committed in the course of a felony, which simply results in a conclusive presumption that the elements of killing “purposely and with premeditated malice” are present. Why would the legislature have intended this disparate result? I submit the legislature did not. The majority has simply reached a result it prefers as a product of an academic exercise. The majority wanted to reach this result, but failed to recognize the logical fallacy inherent in it.
Nothing demands that Cook and Peterson receive the benefit of a twofer rule other than the decision of the majority to conform to decisions elsewhere and be consistent with those foreign jurisdictions. The contention that the legislature did not intend dual punishment of these offenses is simply an effort to share the blame with the legislature for a rule this court chooses to adopt. As the majority notes, the question may be academic because, in theory, neither Cook nor Peterson will ever serve the sentence for armed robbery. This court does not always maintain the validity of convictions, however, and if that were to occur in this or a similar case, the consecutive sentence would not be academic.
We need to keep before us always that we are engaged in the business of government, not academic exercises. The rights of all the people are too important to be addressed at any level other than serious reality. We write and decide for the people of the State of Wyoming, not for the academy. The conclusion of the majority here, that the preservation of the rights secured by the Fifth Amendment to the Constitution of the United States and art. 1, § 11 of the Wyoming Constitution requires the ab*1367rogation of the sentence for armed robbery-imposed upon Cook and Peterson, is simply overkill. In my judgment, pragmatic government demands both sentences stand as a vindication of the rights of the citizens of Wyoming and a clear statement to those who may commit murders during the course of robberies that the State of Wyoming takes seriously its obligation to punish separately violations of all different statutes.
The decision of the majority rewards malefactors such as Cook and Peterson for killing their victim by limiting the available sanctions. I cannot believe the Wyoming legislature could possibly have intended that result. If Cook and Peterson had only wounded their victim, I think there is little doubt under Wyoming cases that they would have been subjected to a punishment for each crime they committed. In this instance, they committed the crime of robbery and the crime of felony murder, and I can discern no inherent barrier other than academic fascination that forestalls the punishment for each crime. As Justice Macy points out, if the legislature did not agree with the separate punishments for the separate crimes, they had ample opportunity to articulate a different policy position.
In other cases, we correctly have promulgated the rule that each crime committed can be punished separately. Rivera v. State, 840 P.2d 933 (Wyo.1992); Baum v. State, 745 P.2d 877 (Wyo.1987); Hamill v. State, 602 P.2d 1212 (Wyo.1979).
[A]s to each victim, Rivera was charged with violation of §§ 6-2-302(a) and 14-3-105. These statutes define different crimes. McArtor v. State, 699 P.2d 288 (Wyo.1985). They are intended to suppress different evils; an acquittal and conviction under one does not prevent prosecution under the other. Goodman v. State, 601 P.2d 178 (Wyo.1979). In Baum v. State, 745 P.2d 877 (Wyo.1987), we held that there is no violation of a defendant’s fundamental right to not be placed twice in jeopardy under the Fifth Amendment to the Constitution of the United States or under art. 1 of the Constitution of the State of Wyoming when conviction and punishment on two counts occurs even though both acts were committed during the same encounter with the victim. Under two separate statutes, two separate criminal acts can be charged, tried, and punished.
Rivera, 840 P.2d at 933.
These cases clearly imply a rejection of the same transaction concept, which this majority decision specifically rejects.
Our rule is like that articulated in People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840 (1970), cert. denied, 402 U.S. 972, 91 S.Ct. 1658, 29 L.Ed.2d 136 (1971), in which the court held that two or more distinct offenses may emanate from the same transaction or act, and the rule that a person cannot be put twice in jeopardy for the same offense is not applicable where two separate and distinct crimes are committed by one and the same act. In Hamill v. State, 602 P.2d 1212 (Wyo.1979), we have a clear example of repeated violations of the same statute in the perpetration of sexual assaults. We held there that the legislature intended to protect the victim against each identifiable sexual penetration. Consequently, even though a continuing course of conduct was involved, each penetration constituted a separate and distinct crime. In Baum, we held that, if different criminal acts are at issue, supported by different factual evidence, even though they are separated in time by only a few seconds, one offense is not included in the other. “The defendants can properly be punished for [all], under different, or the same, statutory provisions.” Baum, 745 P.2d at 882 (quoting State v. Molitoni, [6 Haw.App. 77] 711 P.2d 1303, 1306 (Hawaii App.1985), quoting in turn State v. Pia, [55 Haw. 14] 514 P.2d 580, 584-85 (Hawaii 1973)).
Rivera, 840 P.2d at 943.
If it is correct that the legislature did not intend to punish these offenses separately (which I dispute), then it is not necessary to consider the potential of a constitutional violation. The academic discussion of the majority relating to the constitutional viola*1368tions is nothing more than dictum, and simply demonstrates a compulsion to be erudite with respect to constitutional law. The majority prefers to avoid responsibility for its choice of rules by erroneously attributing an intention to the legislature that these crimes not be punished separately, but wants to claim the credit for an enlightened interpretation of the constitutional rights of the defendants.
The majority decision results in the application of a same transaction rule, even though it is specifically eschewed. By attributing to the legislature the intention that the two offenses of robbery and felony murder lead to only one punishment, the one transaction is treated as only one crime. If we look at what the majority says we then must be confused by what the decision does. I cannot find any justification for attributing an intention to the legislature to merge these offenses for punishment, except that it serves as a convenient excuse to make the court’s choice appear to be the fault of the legislature.
As we contemplate and analyze legislative intent, we must note that Wyo.Stat. § 6-2-101 (1988) describes a killing “in the perpetration of, or attempt to perpetrate, any sexual assault, arson, robbery, burglary, escape, resisting arrest or kidnapping” (emphasis added). The majority opinion simply assumes that the reference to “any * * * robbery” is to a robbery as defined in Wyo.Stat. § 6-2-401 (1986). Yet, Wyo. Stat. Title 6, Crimes and Offenses, is replete with demonstrations that the legislature knew how to refer to another provision of the statutes. E.g., Wyo.Stat. §§ 6-2-105; 6-2-106; 6-2-107; 6-2-303; 6-2-305; 6-2-306; 6-2-307; 6-2-312; 6-2-401; 6-2-503; 6-3-402; 6-4-101; 6-4-102; 6-4-201; and 6-4-402. It is clear to me that, if the references in the felony murder language were to statutory definitions of the several offenses, a cross-reference would be found in the statute. The absence of such a cross-reference is evidence of a legislative intent that the listed crimes are not necessarily those defined in other provisions of the Wyoming statutes, leading to a conclusion the legislature intended separate punishments.
The assumption by the majority is that the language of the statute is case specific, and one should look to the elements of aggravated robbery in this case in order to form a conclusion about double jeopardy. I have read and re-read the statute proscribing first degree murder, and I cannot find any reference there to aggravated robbery. The majority undoubtedly would make the same argument with respect to simple robbery, but I submit the analysis of the majority fails to account for the fact, included in the majority opinion, that a serious bodily injury was inflicted upon this victim before he was killed. It is clear the separate crime of aggravated robbery had been completed before the victim was killed as an incident of that crime.2
The majority fails to appreciate that there.are those who have criminal minds. The failure to maintain separate punishments for these two crimes will be regarded as a victory by these malefactors and others of a like ilk. They are likely to assume it is better to kill the robbery victim because one will receive only one punishment. The fact that a life sentence may be imposed will have little impact because they do not perceive consequences anyhow. Furthermore, what if these life sentences should be set aside for some violation of the rights of the defendants? Would it not be comforting to society to have the sentence for the robbery still to be served? Perhaps, here or elsewhere, that conviction would serve as the predicate for a life sentence as an habitual criminal.
This case really is about choices. Cook and Peterson chose to rob a convenience store, and then they chose to kill the elderly clerk. This court then had a choice as to *1369whether these malefactors should be punished for both of their crimes or for only one of them. It almost seems that the court needed to create a rule so the rule of lenity could be invoked. I cannot avoid the belief that this is an instance in which the compulsion to be right has overridden the obligation to administer justice.
I would hold that Cook and Peterson are bound by the plea agreements they entered into, and they waived their right to challenge the rule in Birr by their pleas of guilty. I would further hold the legislature intended that felony murder and the predicate crime should be separately punished. I would affirm the sentences for both crimes in both cases,
. "Given the facts of this case, the prosecutor could have charged Cook and Peterson with first degree murder for purposely and with premeditated malice killing Hanson." Op. at 1351.
. In drawing out a comparison of the elements of these offenses, the majority has demonstrated that aggravated robbery must be perceived as a lesser included offense of the crime of felony murder committed with aggravated robbery as the predicate. This result creates a problem in an instance in which the victim does not die quickly, and the prosecution must proceed for aggravated robbery and aggravated assault or attempted murder. When the victim in such an instance later dies, prosecution for the most serious offense is foreclosed.