concurring in part and dissenting in part.
I concur in Parts I, II, and III of Judge Benton’s opinion, and in that portion of Part IV that holds that the 1989 act amends §§ 195.020 and 195.200, RSMo 1986. I dissent to the extent that the opinion authorizes an additional jury trial to determine the amount of cocaine possessed, which was not a material element of the offense of which the defendant was convicted.
Section 195.202.1 of the new act is the statutory equivalent of §§ 195.020-195.200. Section 195.223 of the new act introduces a new element. I am inclined to believe that the principal opinion is correct in finding no constitutional objection. I also applaud its recognition that an additional factual ele-* ment cannot be established without a jury trial. But I cannot endorse the novel procedure, authorized neither by statute nor by rule, which the Court now mandates.
I agree that the defendant might receive a “windfall.” As the principal opinion recognizes, § 1.160 cannot be applied without inconsistency or inequity. But the General Assembly adopted the 1990 act with § 1.160 on the books and must be deemed to have been aware of State v. Reiley, 476 S.W.2d 473 (Mo.1972), and State v. Hawkins, 482 S.W.2d 477 (Mo.1972). It also had available Onken v. State, 803 S.W.2d 139 (Mo.App.1991), which taught the means for avoiding the effect of Reiley and Hawkins, even if § 1.160 remains in place. I would hold the legislature to the effect of its enactments and would not load the judicial system with an extra jury trial simply to avoid the possibility of a windfall.
The remand should simply be for resen-tencing under § 195.202.1.