dissenting in part and concurring in part.
1. While I concur with the majority’s conclusion that the sentences are void, I respectfully dissent from the implied ruling that the pleas in this case are not also void. I further dissent from the holding that imposition of confinement in accordance with OCGA § 42-8-60 (Code Ann. § 27-2727) was forbidden by Art. I, Sec. X of the United States Constitution, since there are other factors which render the sentences invalid on non-constitutional grounds. Both logic and judicial propriety dictate that we should refrain from deciding cases on constitutional grounds where it is not necessary to do so.
2. OCGA § 42-8-60 (a) (Code Ann. § 27-2727), the first-offender statute, provides that the court “may without entering a judgment of guilt and with the consent of the defendant: (1) Defer further proceeding and place the defendant on probation as provided by law; or (2) sentence the defendant to a term of confinement as provided by law.” (Emphasis supplied.) The sentences in this case violate this statute in two respects, and this is true regardless of whether the statute was applied in a constitutional manner. First, the defendants did not consent to the sentences imposed. Second, the statute limits the possible sentences to either probation or confinement, and the sentences in this case included both confinement and probation.
3. As I have heretofore said, I do not think we should reach the constitutional issue addressed by the majority because on a retrial of this case, or any other like case, this issue will not arise again if the defendants are properly informed both of the sentence to be imposed, and of the terms of the First Offender Act, as required by OCGA § 42-8-61 (Code Ann. § 27-2729). However, since a majority of the court has agreed to pass on the constitutional issue, I wish to state my disagreement with the conclusion which they reach.
In deciding whether the retroactive operation of a law violates the constitutional rights of an individual, a determination must be made as to whether the new law is procedural or substantive. Todd v. State, 228 Ga. 746 (187 SE2d 831) (1972); Eades v. State, 232 Ga. 735 (208 SE2d 791) (1974). If it is substantive, it may not be applied ex post facto. If merely procedural, it can be applied retrospectively.
*77In this case, the defendants were charged with burglary. The elements of the offense did not change, nor did the possible sentence, which is 1-20 years. Thus, no substantive right was taken away from the defendants by the new statute. The only change involved is a change in the manner in which first-offender treatment may be imposed. Imposition of punishment under the First Offender Act has always been, and continues to be, discretionary with the sentencing judge, and it can be done only with the defendant’s knowing consent. It necessarily follows that if a defendant consents to be sentenced under the First Offender Act, he is not in a position to complain when a first-offender sentence is in fact imposed.
4. The defendants contend that the court erred in accepting their pleas of nolo contendere without first determining that the same were voluntarily and understandingly entered. OCGA § 17-7-95 (Code Ann. § 27-1408 et seq.) provides that a plea of nolo contendere may be entered with the consent and approved of the judge. The plea transcript in this case indicates the pleas of nolo contendere were acceptable to the state, whose approval is not required by law, but it does not affirmatively show the consent and approval of the judge, nor does an examination of the accusation reveal such acceptance. Therefore, regardless of whether or not the pleas were voluntarily and understandingly entered, I must conclude that they were never lawfully accepted.
5. There is a second problem with the pleas. Typewritten on the accusation and appearing below the district attorney’s statement that the defendants have pled nolo contendere are the words: “Defendants waive indictment and consent in writing to enter a plea of guilty to the within accusation.” Underneath this statement are the signatures of the defendants and their attorneys. This would indicate that unrestricted guilty pleas were entered or at least offered. Since these pleas are inconsistent with the proceedings that followed, they render the entire plea procedure vague, unclear, and inconsistent. Accordingly, the pleas should be declared void.
6. For the above reasons, I believe both the pleas and sentences should be set aside and the case remanded for a new adjudication of guilt.
I am authorized to state that Judge Pope joins me in this dissent.