dissenting.
I join Justice O’Hern’s clear and compelling dissenting opinion, but the Court’s extraordinary holding impels me to write separately-
The perceptive reader will understand that the Court has “amended” the Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to 98-4, to authorize a sentencing procedure nowhere to be found within the Code’s carefully crafted provisions. The procedure adopted by the Court makes perfectly good sense, and is not likely to disturb the Legislature. The new procedure authorizes a trial court to sentence a defendant who is convicted of a second Graves Act offense, N.J.S.A. 2C:43-6c, to an extended term of imprisonment although the defendant’s first Graves Act conviction is on appeal. The Court’s new procedure, totally unauthorized by any provision of the Code, directs that the extended term be provisional only and is to be vacated if the prior Graves Act conviction is reversed on appeal. Ante at 18, 656 A.2d at 1255.
Apart from the institutional technicality that under our constitutional system “the judiciary does not pass laws,” State v. Cannon, 128 N.J. 546, 560, 608 A.2d 341 (1992), the major impediment to the Court’s newly authorized Graves Act sentencing procedure is that the Code expressly requires a different result. The Code authorizes an extended Graves Act sentence only for persons “previously convicted” of a Graves Act offense. From its inception, the Code, modeled after the Model Penal Code section 7.05, expressly has provided that “[a]n adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a prior conviction * * * provided that the time to appeal has expired.” N.J.S.A. 2C:44-4b (emphasis supplied). In State v. Mangrella, 214 N.J.Super. 437, 519 A.2d 926 (1986), certif. denied, 107 N.J. 127, 526 A.2d 194 (1987), the Appellate Division, applying the Code’s plain language in the context of the provision authorizing extended sentences for persistent offenders, N.J.S.A. 2C:44-3a, held that the sentencing court may consider any conviction prior to sentencing “provided that there is no pending appeal *31or right of direct appeal.” Id. at 445, 519 A.2d 926. At oral argument, the Attorney General informed us that the State heretofore had taken for granted that the holding in Mangrella applied to Graves Act extended terms.
The majority seeks support for its newly devised sentencing procedure from the decisions of courts in other states that permit enhanced sentencing based on prior convictions pending on appeal. Ante at 12-13, 656 A.2d at 1251-1252. Those states, however, do not have statutory provisions similar to the Code that define a prior conviction as one no longer pending an appeal.
The Court ultimately relies on its view of “probable legislative intent” to sustain its newly crafted sentencing procedure. Ante at 16, 656 A.2d at 1253. If by “probable legislative intent” the Court implies that today’s Legislature probably would prefer the Court’s new sentencing procedure to the one mandated by the Code, the Court surely is correct: a sentencing procedure that compels imposition of an extended term on a defendant whose prior Graves Act offense is on appeal, subject to reduction only in the event of reversal, undoubtedly would be preferred to the Code’s rule that excludes prior convictions from consideration until pending appeals have been concluded. The problem is that a different, but duly elected, Legislature — the one in office in 1978 when the Code was enacted (L. 1978, c. 95) — made a different policy choice, entirely reasonable when made, adopting the Model Penal Code’s conception of enhanced sentencing that prohibits consideration of prior convictions still pending on appeal. The Legislature that passed the Graves Act in 1981, L. 1981, c. 31, only three years later, made no change to the Code’s definition of prior conviction, apparently aware of and accepting the principle that only prior convictions no longer pending on appeal were eligible for consideration in imposing extended terms.
The Court’s rewriting of the Code’s carefully conceived sentencing scheme is deeply disturbing. If the Court is convinced that the Code’s definition of “prior convictions” frustrates the intent of the Graves Act, it could use this case as a vehicle to flag the issue *32for the Legislature’s attention, as the Court has often done in the past. See, e.g., Cannon, supra, 128 N.J. at 573, 608 A.2d 341 (commending Intensive Supervision Program for legislative consideration); State v. Styker, 134 N.J. 254, 263-64, 633 A.2d 521 (1993) (Wilentz, C.J., concurring) (referring for legislative consideration sentencing standards for youthful offenders convicted of first- and second-degree offenses). Instead, disregarding the Code’s clear language, plain meaning, and entirely plausible provisions concerning the use of prior convictions for sentencing enhancement, the Court usurps the legislative function and “construes” the Code to authorize an unauthorized sentencing procedure never enacted by any legislative body of this State. The Court’s decision also produces the anomalous result that a prior conviction pending on appeal will be treated differently under the Graves Act than it will be for purposes of sentencing persistent offenders.
The Court’s unconventional disposition of this appeal probably will not attract significant attention. The Court’s ruling will prevent second-time Graves Act offenders from avoiding an enhanced sentence because their prior conviction is on appeal. However, the cost to the Court of the institutional compromise that occurs when it ignores basic legal principles to achieve a result more consistent with contemporary public policy, apparently acceptable to the majority, is heavy indeed. I have no doubt that in the long run the compromise is not worth the result achieved by the Court’s extraordinary holding. As Justice O’Hern’s opinion points out, a substantially equivalent sentence could have been imposed on defendant under the authority of;the Code’s existing provisions. Ante at 28-29, 656 A.2d at 1249. Moreover, the Legislature is waiting in the wings, and could have acted had the Court but stayed its hand.
I would reverse the Appellate Division’s judgment and hold that defendant is ineligible for a Graves Act extended sentence.
O’HERN, J., joins in this opinion.