(Concurring and dissenting)
I concur in Parts I and II of the majority opinion, except for that portion of Part I as to the standard to be used in determining whether a lesser-included offense instruction should be given.
*590However, I dissent from the holding in Part III that U.C.A., 1953, § 76-3-207(4), which requires a remand for resentencing to either life imprisonment or death when error is found in the initial sentencing procedure, may be applied to this particular defendant.
The statute that was in effect when the crime was committed, when the defendant was tried and sentenced, and when the defendant filed his appellate brief, required that he be sentenced to life imprisonment if the Court found error in the sentencing procedure.1 That statute was amended to its present text in February, 1981 — one year after the defendant filed his appellate brief. The State did not file its brief until March 15, 1983.
I.
In my view, particularly in light of the above chronology, the majority’s holding that § 76-3-207(4) may be applied retroactively makes that section a prohibited ex post facto law as to the defendant.
The majority relies on Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), to characterize the application of § 76-3-207(4) as procedural and therefore not violative of the ex post facto clause. The major portion of the Dobbert opinion, however, deals with facts different from the instant case. In Dobbert, the amended statute to be applied retroactively altered who would determine the punishment, not the amount of punishment. The majority seeks to make of § 76-3-207(4), the resentencing provision, a mere procedural change on the ground that it “has nothing to do with ... the amount of punishment” inflicted. Yet application of that statute directly determines whether the defendant receives a mandatory life imprisonment or is subjected to a sentencing procedure where the death penalty may be imposed. Clearly, that does affect punishment and is not simply procedural, as was the statute in Dobbert.2
Other cases which the majority relies on and considers “directly analogous” or “identical” to the instant case involve changes in statutes of limitation and admissible evidence. Those matters are not analogous to the instant case; they have nothing to do with a possible increase in punishment.
More on point is Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), where the United States Supreme Court stated the two elements necessary for a statute to be ex post facto: it must be retroactive and disadvantageous to the defendant. The law “need not impair a ‘vested right’ to violate the ex post facto prohibition.” Id. at 29, 101 S.Ct. at 964. Therefore, the majority’s characterization of the defendant’s present interest as an expectancy rather than a right is irrelevant to whether the statute is ex post facto. The Court in Weaver explained:
Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in *591effect on the date of the offense. [Emphasis added.]
Id. at 30, 101 S.Ct. at 965.
Even though Weaver is not a death penalty case, its facts are applicable to the instant ease. In Weaver, the defendant was convicted and sentenced while a statute which computed “gain time” 3 was in effect. Later, the statute was amended to calculate gain time in a way that was possibly detrimental to the defendant. The State argued in Weaver that the gain time calculation was not a part of the defendant’s punishment. The Court found that the amended statute could require the defendant to serve more time than the initial statute. Of course, the amended statute did not increase his original fifteen year sentence, but increased the amount of the sentence he would be required to serve. Although the defendant would seemingly be in the same position as when he was sentenced, the Court held that if the statute were applied detrimentally to him it would violate the Constitution because it “substantially alters the consequences attached to a crime already completed, and therefore changes ‘the quantum of punishment.’ ” Id. at 33, 101 S.Ct. at 966.
Similarly, in the present case, the amended statute alters the amount of punishment that may at this point be imposed on the defendant compared with the punishment authorized at the time of the illegal acts. If the method for determining gain time is not merely procedural when examined under the ex post facto clause, then it hardly seems consistent to call a statute that permits imposition of the death penalty a procedural change. Nevertheless, the majority claims that the defendant is in the same position now as when he committed the crime, that is, a sentence of either life imprisonment or death may be imposed on him. However, that reasoning misses the critical point. The defendant is in the same position1 only if the original statute on re-sentencing is ignored.
Additionally, the majority states that “the amendment may or may not affect the outcome when defendant is resentenced.” That is not the test for determining whether a statute is detrimental and violative of the ex post facto clause. The test is whether the statute may be more onerous. See Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). In Lindsey the Court stated, “[A]n increase in the possible penalty is ex post facto, regardless of the length of the sentence actually imposed.” Id. at 401, 57 S.Ct. at 799 (citations omitted). The amended statute in the instant case clearly falls within the ambit of that rule.
II.
Finally, this case was prolonged for over one year after the appellant filed his brief February 13, 1981, by the State’s filing seven successive motions for continuances to file its brief. Had the brief been filed in the usual course of events, this Court could undoubtedly have decided the case when the old statute was still in effect. To permit a life or death decision to turn on the State’s prolonging this case, for whatever reason, beyond the effective date of the new statute is a clear violation of due process of law.
. § 76-3-207(3). See majority opinion, footnote 3.
. An additional issue in Dobbert was whether the amended death penalty statute should be applied to the defendant at all. Before the defendant committed the crime, the Florida death penalty was declared unconstitutional, but a second death penalty statute was enacted prior to his sentencing. The Court held that application of the second statute did not violate the ex post facto clause because the defendant had "fair warning as to the degree of culpability which the State ascribed to the act of murder.” Id. at 297, 97 S.Ct. at 2300. The "fair warning” that worked to the defendant’s detriment in Dobbert, would seem to require fair notice in the instant case. The defendant not only had no warning that the death penalty statute would be amended, he had no reason to believe that the statutes in effect at the time of the crime would not be applied.
. Gain time statutes contain formulas that reduce a portion of a prisoner’s sentence for good conduct.