dissenting.
Arizona has recognized that the legislature sets sentencing limits and delegates the authority to control the sentence, within those limits, to the courts and the executive branch. State v. Pakula, 113 Ariz. 122, 547 P.2d 476 (1976). The criminal code spells out whether conduct is criminal and prescribes the range and variety of penalties and conditions for their imposition. Unlike the judicial branch in California, as is shown in the authorities cited in the majority opinion, the Arizona judicial branch has not heretofore anointed itself as the exclusive high priest of all sentencing activities, thereby removing the sanctified process from taint by the executive or legislative branches. I believe the better view was expressed in the earlier California case of People v. Sidener, 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641 (1962), where the California Supreme Court held that the legislature could properly vest certain public officers with the responsibility for determining the punitive consequences of recidivism in individual narcotic cases. The dissent by Justice Schauer seems to have subsequently carried the day and serves as the starting point for the cases cited by the majority.
The sentencing scheme before us, in my view, does not remove from the trial court its ultimate sentencing authority; it merely vests in the prosecutor the keys to limited leniency in an area of universal public concern. Where a recommendation is made by the prosecutor, the court still retains the ultimate prerogative of whether or not to follow the recommendation. I do not believe that this cuts across the lines of the separations of powers. James Madison stated that it is only where “... the whole power of one department is exercised by the same hands which possess the whole power of another department, [that] the fundamental principles of a free constitution are subverted.” Federalist, Nos. 43, 47. Cf. Vansickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 (Kan.1973), holding that vesting a limited legislative power in the Governor is not a violation of the separation of powers provision of the U.S. Constitution. See also, State v. Greenlee, 228 Kan. 712, 620 P.2d 1132 (Kan.1980) (upholding a statute setting guidelines for a prosecutor’s implementation of a diversion program as not violative of separation of powers doctrine).
In People ex rel. Carroll v. District Court of Second Judicial District, 106 Colo. 89, 101 P.2d 26 (Colo.1940), the Supreme Court of Colorado upheld a statute which granted the prosecutor the right to prevent the suspension of a sentence by withholding approval thereof. In People ex rel. Carey v. Cousins, 77 Ill.2d 531, 34 Ill.Dec. 137, 397 N.E.2d 809 (Ill.1979), the court upheld a statute under which the death penalty could be imposed after a hearing which could only occur if requested by the prosecutor. The court stated:
“There are countless occasions in the trial of a criminal proceeding where a judi*307cial ruling that is adverse to the defendant and may affect the ultimate outcome of the prosecution will not, and ordinarily cannot, be made unless a request for the ruling has been made by the prosecution.” 397 N.E.2d at 812.
The Arizona judiciary has been zealous in protecting the legislative prerogative of establishing sentencing procedures. State v. McClarity, 27 Ariz.App. 571, 557 P.2d 170 (1976). I believe the statute in the instant case should be upheld as constitutional. The judiciary by no means monopolizes the criminal justice product. The adjudicative process is no more compromised by an alternative sentencing prerogative available upon recommendation of a prosecutor than it is by a mandatory sentencing statute. The wisdom of opting for the former should remain in legislative halls. The important business of criminal justice requires the best efforts of all three branches of government. I do not believe the statute unconstitutionally mixes responsibilities and I would uphold it.