(dissenting).1 I dissent from the majority’s decision that the defendants may now be punished only for the lesser included offense of possession of heroin. I would apply the “rule of revival” and order that the defendants be resentenced for the more serious crime of which they were convicted, unlawful distribution of heroin, under the law as it existed before the 1980 revision of G. L. c. 94C, § 32.
General Laws c. 94C, § 32, was enacted in 1971. Pursuant to that statute, the manufacture, distribution, or dispensation of a class A or class B controlled substance, or the possession of such substance with the intent to manufacture, distribute, or dispense was punishable on first offense by imprisonment (not more than ten years in State prison or not more than two and one-half years in a jail or house of correction), by fine, or both. In 1980, § 32 was replaced by nine new sections, §§32 through 32H, each dealing more or less with a specific class of drugs. St. 1980, c. 436, § 4. We are concerned in this case with a class A controlled substance (heroin). The 1980 statutory revision made no *774change in the status of heroin as a class A controlled substance or in the proscribed conduct. The only changes related to the punishments.
I agree with the majority that § 32 (a) is unconstitutional because the punishments as revised in that 1980 enactment are vague, uncertain, and confusing. I also agree that the defendants may now properly be punished for the lesser included offense of mere possession, since the controlling statute there (G. L. c. 94C, § 34) is constitutional in all respects. But this court should go further and order that the defendants be resentenced under the rule of revival. This rule is simply that the unconstitutional amendment was void from its inception, and consequently never took effect to supersede the prior statute.
There is some precedent to indicate that this rule has long been part of the law in this Commonwealth. See Commonwealth v. Kimball, 299 Mass. 353 (1938); Opinion of the Justices, 269 Mass. 611 (1929); Lawton Spinning Co. v. Commonwealth, 232 Mass. 28 (1919). Further, it is the established rule in other jurisdictions. State v. Bloss, 637 P.2d 1117 (Hawaii 1981). State v. Books, 225 N.W.2d 322 (Iowa 1975). State v. Dixon, 530 S.W.2d 73 (Tenn. 1975). State v. Collins, 528 S.W.2d 814 (Tenn. 1975). State v. Kolocotronis, 73 Wash. 2d 92 (1968). See Frost v. Corporation Comm’n of Okla., 278 U.S. 515, 525-528 (1929); Davis v. Wallace, 257 U.S. 478, 485 (1922); Chicago, I. & L. Ry. v. Hackett, 228 U.S. 559, 566 (1913); People v. Fox, 294 Ill. 263 (1920). It is true that one case has held that the revival rule could not constitutionally be invoked because, in the circumstances there presented, the defendant did not have sufficient notice of the criminality of his conduct to satisfy the due process requirements of the Federal Constitution. United States ex rel. Clark v. Anderson, 502 F.2d 1080 (3d Cir. 1974). That reasoning clearly does not apply here. It would border on the frivolous for the defendants or any other persons to argue that they were not on notice that, at all relevant times, distribution of heroin was and is a criminal offense in this Commonwealth. Nor could the defend*775ants reasonably argue that they were ever in any uncertainty as to the precise crime charged against them. In light of these factors, all the majority’s reasoning, whether premised in the Constitution or in policy, fails.
There is no persuasive reason why the rule of revival should not apply here. I have no doubt that this would be consistent with legislative intent. There is every reason to believe that the Legislature would prefer to revive the former statute, rather than have a substantial period of time in which the reprehensible conduct involved here was not a criminal offense. I would remand this case to the Superior Court for resentencing of the defendants for the crime of distribution of heroin under G. L. c. 94C, § 32, as enacted in 1971.
The Chief Justice was not originally a participant in this matter, but was invited to join the quorum after issuance of the court’s opinion, and after the Commonwealth filed a petition for rehearing. Justice Wilkins and Justice Lynch at an early stage in the proceedings each disqualified himself from participation in the case.