dissenting.
I agree with the majority that I.C. § 18-4004 in effect at the time appellant was sentenced was unconstitutional and that appellant’s death sentence must, therefore, be set aside. However, I am persuaded that on resentencing the death penalty may be imposed on this appellant without working an illegal retroactive application of our present death penalty statute.
A review of recent United States Supreme Court cases will show that I.C. § 18-4004, when read together with and interpreted by I.C. § 19-2515, is constitutional and in conformance with Supreme Court requirements for capital sentencing. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, supra.
Imposing the death penalty for the crime of first degree murder is neither inherently barbaric nor an unacceptable mode of punishment; neither is it always disproportionate to the crime. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Jurek v. Texas, supra; Proffitt v. Florida, supra; Gregg v. Georgia, supra. Recent United States Supreme Court cases have outlined procedural limits which are designed to ensure that the death penalty is not arbitrarily and capriciously imposed. It was the lack of adequate procedural safeguards which prompted the Supreme Court to hold unconstitutional the death penalty in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); and Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977). As the Court stated in Woodson, “the issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death.” 428 U.S. at 287, 96 S.Ct. at 2983.
The sentencing procedures mandated by the United States Supreme Court in the recent death penalty cases are as follows: (1) there must be a hearing to consider the aggravating and mitigating circumstances surrounding the defendant’s crime; (2) there must be standards to guide the sentencing authority in its election of which first degree murderer shall live and which shall die; and (3) there must be meaningful appellate review to guard against the arbitrary and capricious exercise of the sentencing power. The present I.C. § 18 — 4004, read together with I.C. § 19-2515 appears to meet all the above requirements.
The question is therefore raised as to whether remanding Lindquist for sentencing under the amended statute works a retroactive application of that statute. Idaho Code § 73-101 states, “No part of these compiled laws is retroactive, unless expressly so declared.” Remanding for sentencing does not work an illegal retroactive application of the statute.
To consider this argument, several facts must be remembered. Lindquist was found guilty of first degree murder. This statute is constitutional and we have upheld his conviction. I.C. § 18 — 4001. The majority has ruled his sentencing invalid for infirmities previously mentioned. The sentencing statute is completely separate from the murder statute. Because the previous sentencing statute was unconstitutional, the case should be remanded for sentencing under the new statute. The crime Lindquist was found guilty of has not changed because of our ruling. The change in sentencing affords Lindquist greater protections than did the previous sentencing statute,
A clear understanding of what is meant by retroactive will show that I.C. § 73-101 presents no bar to resentencing under amended I.C. § 19-2515 in this case.
A statute is not made retroactive merely because it draws upon facts existing prior to its-enactment. Thus changes in procedural law have been held applicable to existing causes of action. The effect of such statutes is actually prospective in nature since they relate to the procedure to be followed in the future.
Olivas v. Weiner, 127 Cal.App.2d 597, 274 P.2d 476, 479 (1954).
*777Lindquist has been convicted of murder, the same murder statute in effect at the time of the murder and at his trial. Lindquist has a right to be sentenced according to constitutional standards. Woodson v. North Carolina, supra. Lindquist does not have a vested right to be wrongly sentenced.
This Court has rejected the “doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence.” [citations omitted] The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner, [citations omitted] In this case the court “only set aside what it had no authority to do, and substituted directions required by the law to be done upon the conviction of the offender.”
Bozza v. United States, 330 U.S. 160, 166-7, 67 S.Ct. 645, 649, 91 L.Ed. 818 (1947). See also Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
In rejecting a contention that reviewing a lower court judgment (under jurisdiction granted by a statute passed after that judgment) works a retroactive effect, the United States Supreme Court said: “ ‘The truth is,’ says Chief Justice Parker in Foster v. Essex Bank, 16 Mass. 245, ‘there is no such thing as a vested right to do wrong.’ ” Freeborn v. Smith, 2 Wall. 160, 17 L.Ed. 922 (1865).
Because Lindquist has no vested right in being sentenced under the unconstitutional statute, it does not work a retroactive effect to sentence him under the constitutional statute. “[A] retroactive effect is obtained only when a statute is applied to rights acquired prior to its enactment.” Dumesnil v. Reeves, 283 Ky. 563, 142 S.W.2d 132 (1940).
“A statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions already past, is deemed retroactive.” Butte & Superior Mining Co. v. McIntyre, 71 Mont. 254, 229 P. 730, 733 (1924).
This Court has followed those pronouncements on the definition of retroactivity. Engen v. James, 92 Idaho 690, 448 P.2d 977 (1969).
A law is not retroactive merely because part of the factual situation to which it is applied occurred prior to its enactment; rather, a law is retroactive only when it operates upon transactions which have been completed or upon rights which have been acquired or upon obligations which have existed prior to its passage.
Frisbie v. Sunshine Mining Co., 93 Idaho 169, 172, 457 P.2d 408, 411 (1969).
Lindquist argues that exposing him to the death penalty on resentencing works an ex post facto violation.1 In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the United States Supreme Court answered that question in the negative.
It is equally well settled, however, that “the inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.” Gibson v. Mississippi, 162 U.S. 565, 590, 16 S.Ct. 904, 40 L.Ed. 1075 (1896). “[T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, see Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 59 L.Ed. 905, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” [citation omitted].
*778Id. at 293, 97 S.Ct. at 2298.
Petitioner’s second ex post facto claim is based on the contention that at the time he murdered his children there was no death penalty “in effect” in Florida. This is so, he contends, because the earlier statute enacted by the legislature was, after the time he acted, found by the Supreme Court of Florida to be invalid under our decision in Furman v. Georgia, supra. Therefore, argues petitioner, there was no “valid” death penalty in effect in Florida as of the date of his actions. But this sophistic argument mocks the substance of the ex post facto clause. Whether or not the old statute would in the future, withstand constitutional attack, it clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided 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 death penalty statute in effect at the time Dobbert murdered two of his children was later declared unconstitutional by the Florida Supreme Court. By the time Dobbert was sentenced, however, a constitutional death penalty statute had been enacted. The United States Supreme Court held that sentencing him to death under the new statute did not violate the ex post facto clause. In so holding, the Supreme Court stressed several factors. First, the changes made by the new statute were clearly procedural. The statute altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime. Second, the procedural changes were ameliorative. The new statute afforded significantly more safeguards to ensure that the death penalty was not arbitrarily and capriciously imposed. Finally, at the time Dobbert murdered his children, there was in effect a statute warning him that the crime of first degree murder could be punished by death. Whether or not the statute would withstand future constitutional attack, it clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers.
Applying the reasoning in Dobbert to the present case, it is clear that appellant can be resentenced under the amended statute. The legislature has changed only the procedures for determining whether to impose the death penalty; the quantum of punishment and the definition of the crime remain the same. The procedural changes afford appellant significantly greater protection against the arbitrary and capricious imposition of the death penalty. Finally, at the time appellant murdered his victim, he was on notice that Idaho would seek to punish his acts with death.
“In this case, not only was the change in law procedural, it was ameliorative. It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” Dobbert v. Florida, supra at 294, 97 S.Ct. at 2299.
Although my disposition of this case would not violate the federal ex post facto clause, we are asked to construe the Idaho ex post facto clause more narrowly. The argument is that under the law in effect at the time appellant murdered his victim, he could not be constitutionally sentenced to death. Thus, it would surely violate the ex post facto clause if he were resentenced to death under procedures the legislature has mandated to conform to the requirements of the eighth amendment. This simplistic argument also ignores the purpose of the ex post facto clause.
*779The underlying basis for the ex post facto clause is a belief that it would be manifestly unjust to punish as criminal an act which was innocent when done. As stated by Justice Paterson in Calder v. Bull, 3 U.S. (3 Dall.) 386, 396, 1 L.Ed. 648 (1798) (quoting from Blackstone):
Here it is impossible, that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilty by a subsequent law; he had, therefore, no cause to abstain from it; and all punishment when not abstaining must of consequence be cruel and unjust.
The rationale underlying the clause also prohibits statutes enhancing the punishment for a crime after its commission and statutes depriving a defendant of a defense available at the time he committed his criminal act.
At the time appellant killed his victim, he was on notice that his actions constituted the crime of first degree murder, and that the punishment for that crime could be death. The legislature has changed only the sentencing procedures by requiring that the sentencing discretion be guided and channelled rather than completely unrestrained. The purpose of the change is to provide the procedural protections required by Furman v. Georgia, supra, and Woodson v. North Carolina, supra.
Nothing I argue for today changes either the definition of the crime or the quantum of punishment attached thereto or the available defenses. I would, therefore, remand the case for resentencing under our present death penalty statute.
SHEPARD, C. J., concurs.. An ex post facto law is a statute which “punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available *778according to law at the time when the act was committed.” Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 (1925). Although the ex post facto clause is a limitation on the power of the state legislatures, the due process clause bars a state supreme court from achieving the same result through judicial construction. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).