dissenting.
The majority opinion here approves the doctrine of State v. Randolph, 186 Neb. 297, 183 N. W. 2d 225, but determines that it should not apply to L.B. 23, Laws 1975, on the strength of semantical and technical arguments from which this court concludes that the Legislature did not intend the Randolph doctrine to apply to the complete revision of the statutes dealing with sexual assault and related criminal sexual offenses.
The principle underlying Randolph is simply that of even-handed justice. The holding makes the inevitable inference that when the Legislature adopts a new statute imposing a lighter penalty which it now deems to be sufficient for the criminal actions involved, it must have intended the new penalty to apply to every case to which it could constitutionally apply. The actual intent of the Legislature is the single vital and controlling issue.
The majority opinion assumes that the Legislature intended to apply the old harsher penalty to a defendant sentenced for rape or assault with intent to commit rape before the effective date of L.B. 23, even though exactly the same criminal actions are now subject to a lighter maximum penalty. The majority opinion supports that conclusion by the argument that rape is no *576longer called rape but instead is called sexual assault, and that the new law includes not only all the old crimes but forms of sexual assault not heretofore defined by statute. Two facts, however, are undisputable. Any and all criminal acts which formerly constituted the crimes of rape and assault with intent to commit rape are still crimes under the new law. The new law has also reduced the maximum or minimum penalties for such crimes. To hold that the Legislature deliberately intended to deny a defendant the benefit of a reduced maximum penalty provided by the new law simply because the defendant was sentenced a day, a week, a month, or even several months, before the new law and the new penalty became effective, assumes that the Legislature had no concern for even-handed justice but instead was motivated by a desire for vengeance. As this court said in State v. Randolph, supra: “ ‘* * * it is safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts.’ ” Here the defendant’s sentence is clearly not final and there is no reason whatever that the principle of even-handed justice under the Randolph doctrine should not apply in the absence of a clear indication by the Legislature that it was not to apply.
The legislative approval of the principle of evenhanded justice and the doctrine of Randolph is already apparent in other statutes. The Randolph opinion was filed January 22, 1971. Section 29-2204.01, R. S. Supp., 1974, was adopted by the Legislature shortly thereafter and became effective July 6, 1972. That statute provides: “In any criminal proceeding in which a sentence of confinement has been imposed and the particular law under which such sentence was pronounced is thereafter amended to decrease the maximum period of confinement which may be imposed, then any person sentenced under the former law shall be entitled to his discharge from custody when he has served the maximum period *577of confinement authorized by the new law, notwithstanding the fact that the court may have ordered a longer period of confinement under the authority of the former law.”
On the basis of that declared legislative policy, it is difficult to understand how the majority opinion can find that the Legislature did not intend that the new maximum punishment which the Legislature now feels fits the old crime of rape and the new crime of sexual assault in the first degree should not apply to a defendant whose sentence for rape is not yet final.
The majority opinion makes much of the fact that the new law makes the fact and extent of serious personal injury to the victim a matter to be considered in determining punishment and may require an evidentiary hearing on a plea of guilty. In the case before us, however, it is clear that even if the most serious personal injury be assumed, and that the defendant here was entitled to receive the maximum possible sentence under the new law, that sentence would be 8% years to 25 years rather than the sentence of 10 to 30 years which he received under the old law. The fact that an evidentiary hearing might be required in some cases of sexual assault in the second degree in order to determine the applicable maximum penalty is certainly no reason for denial of relief to a defendant whose sentence exceeds the maximum that could be imposed, no matter what the evidentiary hearing disclosed. If any evidentiary hearing is required before sentencing under the new law it is obviously also necessary for an offense which occurred before the effective date of the new law if the new penalty is to be applied. But it is the new law which makes it necessary and not the application of the Randolph doctrine.
There are probably comparatively few defendants in Nebraska who were sentenced for rape or assault with intent to commit rape in the short time between the date the new law was adopted and the date it became *578effective, and there are even fewer of those whose sentences are not yet final. At least three of them, however, were involved in the September 1975 hearings in this court. If a rule is just and can properly be applied to a certain class of cases, the fact that the number of defendants involved may be small does not justify an injustice to any one of them, nor provide an adequate excuse for denying justice to all of them, however small the number. The fact that it may require a hearing to determine the relevant facts ought not to be an insurmountable roadblock in the pursuit of justice.
Even-handed justice ought to be an actual, vital standard which all courts and legislatures realistically strive to achieve rather than merely an idealistic principle to which they pay only lip service. It seems transparently clear that the Legislature did not intend to discard that basic principle when it completely revised and rewrote the laws of this state dealing with sexual assault and related criminal sexual offenses. Hopefully the Legislature may clarify that intent at the next session.