concurring in part and dissenting.
I.
The Sentence
Although I do concur in upholding the sentence imposed by the district court, I do believe that it may turn out to be excessive. If the defendant is withdrawn from society, then, during that time little children will be safe from his inexcusable activities — which is surely what the district court considered a foremost requirement. Although the majority opinion seems more bent on punishment for the sake of punishment, it is difficult to envision this defendant as a hardened criminal. There ordinarily is insufficient time during which the district court has jurisdiction to alter a sentence. Here, however, on remand, where thirty months have now gone by, under the provisions of I.C.R. 35, the district court could accurately ascertain the time which it might take to cure the defendant of his affliction and at the same time prevent further transgressions. This may be an instance where appellate delay is beneficial. Sufficient time has gone by to make meaningful a review of the sentence — which otherwise could not have been done under existing statutes and rules.
II.
The Motion to Withdraw the Guilty Plea
Just last year in State v. Howerton, 105 Idaho 1, 665 P.2d 700 (1983), we declined to overturn a district court’s denial of a motion to withdraw a guilty plea. The facts of this case are on a par with the facts before us there. Of singular note in both cases the defendant declares that he has no recollection of committing the charged acts. In both cases the defendant was not only counseled, but the court took extreme pains in ascertaining the voluntariness of the guilty plea. Accordingly, I concur in the Court’s opinion upholding the denial of the motion.
III.
If I were being presented with an opinion which presented a rationale of its own for upholding the constitutionality of § 18-6607, it is likely that I might be persuaded to join it. What I see before me, however, *79is an opinion which to my mind seems more aimed at defeating Schwartzmiller v. Gardner, 567 F.Supp. 1371, United States District Court for the District of Idaho, than in benefiting from it. I find the Schwartzmiller opinion extremely well-reasoned, and highly persuasive. It concludes with the holding that the plain language of I.C. § 18-6607 is unconstitutionally vague on its face, but adds two of petitioner’s convictions are valid because of previous saving interpretations made by the Idaho Supreme Court. The district court was there referring to State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952), and State v. Wall, 73 Idaho 142, 248 P.2d 222 (1952). Obviously acknowledging the fetters of these two cases and the constraints of Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973), the district court noted that the Idaho Supreme Court has not ever re-examined the rationale of Evans, 567 F.Supp. pp. 1374 and 1377. Nor, according to my research, has it ever re-examined the validity of Wall, or State v. Petty, State v. Deane, 73 Idaho 136, 248 P.2d 218 (1952).
The United States District Court was precluded from overruling the antiquated 1952 cases, but this Court is not. However, rather than to further the advance upon which the district court so nobly embarked, the majority who speaks this day for this Court refers to those 1952 cases and declares that “These previous cases put defendant Harmon on adequate and fair notice that his act violated I.C. § 18-6607.” On that predicate the majority predicates its ultimate determination that I.C. § 18-6607 is not unconstitutional. It is difficult for me to believe that the majority can so easily eschew this prime opportunity to continue the good work which the district court started in Schwartzmiller. The defendant Harmon will be astounded to learn from the majority opinion that those 1952 cases put him on fair notice that his actions were in violation of I.C. § 18-6607. Even those scant few who read this Court’s opinions will find that tenet untenable — in fact, ridiculous. One would not be quite so startled if the majority simply said that defendant should have known of the statute, but to say, as the majority does, that he and all other citizens of Idaho are chargeable with the contents of Volume 73 of the Idaho Reports is simply an outrage to ordinary sensibilities. I am put in mind of an example brought to our attention at oral argument in the last year by a member of the bar. In conversation with his son concerning a pending case, the son was told that the defendant was charged with the infamous crime against nature. “What kind of trees did the defendant cut down, Dad?” asked the son. While it is true the lad was still in his teens, generally that is a very knowledgeable age, and his statement serves to well demonstrate that not only is that statute for the most part unknown to the populace, it is beyond the realm of reality for a court to hold the populace chargeable with knowledge of its case-law. Such a proposition is a monstrous absurdity.
IV.
Suggested Remedial Legislation
The District Court noted that:
“many ‘forward-looking jurisdictions have expressly rejected the antiquated notion that the penal code should not clearly define such acts.’ Balthazar v. Supreme Court, 573 F.2d 698, 701 (1978). The phrase ‘such acts’ obviously refers to the specific conduct the legislature seeks to prohibit. In the future, convictions under § 18-6607 can be constitutionally obtained only against defendants who engage in conduct to which the Idaho Supreme Court has already applied the statute, or which the same Court has specifically said is lewd and lascivious. Because that is the limit of its present scope, the Idaho Legislature may decide to rewrite §18-6607 so that it complies with constitutional mínimums of due process; if so the Court refers that body to 18 U.S.C. § 2253 (1978) as a guide:
*80‘(2) “sexually explicit conduct” actual or simulated—
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sado-masochistic abuse (for the purpose of sexual stimulation); or
(E) lewd exhibition of the genitals or pubic area of any person;____’
Congress passed that statute and accompanying definitions to enable the District of Columbia to curb sexual exploitation of children. The language used could not irritate the moral sensibilities of anyone and it complies with all notions of due process by providing fair notice and sufficient legal guidelines for law enforcement. But that is a determination the legislation must make.” Appellant’s Brief, pp. 22-23.
Thus, provided with excellent guidelines, the legislature indeed could have readily rectified the existing problem. Instead of presenting the legislature with proposed remedial language, for which there was more than ample time, the attorney general prosecuted an appeal to the Ninth Circuit Court. If that Court adheres to Wainwright, supra, the efforts of the District Court to bring a degree of reason to criminal jurisprudence will go for naught. As I read Wainwright all that the attorney general needs to do in order to perpetuate the dark ages is to present a certified copy of the majority opinion to the Court of Appeals in San Francisco. The majority, again I say for whatever reason, and certainly not in the advancement of the administration of justice, has clearly decided to undo the considerable labors of the District Court. The District Court may find some solace in observing that the Idaho Court of Appeals recently fared no better in its effort at improving the system. State v. Nield, 106 Idaho 665, 682 P.2d 618 (1984).
Making this chapter all the more incomprehensible, four members of this Court wrote altogether four opinions whereby the statute proscribing prostitution was not provided with a saving gloss, but rather struck down because it “failed to use clear and unambiguous language to provide notice of the proscribed conduct.” State v. Lopez, 98 Idaho 581, 590, 570 P.2d 259, 267 (1977), and because of “failure of the complaint to charge an offense.” 98 Idaho at 590, 570 P.2d at 267. I was unable to agree in that case, and am equally unable to fathom the course charted by the majority in this.
Those 3-2 decisions by this Court in 1952 are in dire need of re-evaluation. Since it is not going to happen, perhaps some fair-minded legislators may chance upon the decision of the United States District Court and initiate appropriate action. In that regard it may be noted that the 1977 legislature quickly (and wisely) responded to the first set of opinions in Lopez, June 14, 1976, by passing remedial legislation instead of awaiting the outcome of the rehearing.