concurring in result.
I view the issue before us as whether sentence modification may be granted notwithstanding the passage of 365 days from the date the defendant began serving her sentence and notwithstanding the prosecutor’s refusal to show confidence in the defendant’s demonstrated rehabilitative achievements by insisting that she execute the full sentence originally imposed.
This insistence would seem to carry with it a harshness (in light of present circumstances) more akin to retribution and vindictive punishment rather than a recognition of factual rehabilitation. Here, it is uncontro-verted that the trial court thought it clear that Schweitzer had been rehabilitated to the extent that sentence modification was appropriate and that such modification would have been ordered were it not for the lack of consent from the prosecutor.
The trial court was, therefore, clearly correct in defining the issue as one of constitutional proportions vis-a-vis the legislative provision for a prosecutorial veto over the exercise of what would appear to be an otherwise discretionary act of the judiciary. To the extent that Beanblossom v. State (1994) Ind.App., 637 N.E.2d 1345, trans. denied, expresses the view that sentencing modification authority is not made subject to the prosecutor’s veto, I disagree.
Under the Beanblossom analysis and a literal construction of the statutory language, by approving a proposed sentence modification after expiration of 365 days, the prosecutor confers jurisdiction upon the trial court where it would not otherwise lie. This does indeed seem to me to transfer the power to confer jurisdiction from the legislative branch to the executive branch in violation of *493Art. 3, § 1 of the Indiana Constitution.1 In this regard, it is noted that Art. 7, § 8 of the Constitution provides that the state trial courts of general jurisdiction “have such civil and criminal jurisdiction as may be prescribed by law.” Thus, the General Assembly controls the jurisdiction of trial courts. State ex. rel Palmer v. Circuit Court of Hendricks County (1963) 244 Ind. 297, 192 N.E.2d 625.
I further observe that county prosecutors are part of the executive branch of government. To be sure, the county prosecutor is considered a judicial officer. State ex rel. Williams v. Ellis (1916) 184 Ind. 307, 112 N.E. 98. However, the terminology is used in the sense that it is the prosecutor who is charged with the administration of justice. State ex rel. Freed v. Martin County Circuit Court (1938) 214 Ind. 152, 14 N.E.2d 910. Thus, while the prosecutor is considered a judicial officer in the sense that he is an officer of the court in prosecuting offenses before the court, he is not a member of the judicial branch of government by virtue of that office. Rather, he is a member of the executive branch of government. This is so, because he represents the executive in the enforcement of the criminal laws of the state. Dickerson v. State (1982) Ala.Cr.App., 414 So.2d 998; State v. Winne (1953) 12 N.J. 152, 96 A.2d 63; 27 C.J.S. District and Prosecuting Attorneys § 1 (1959). See also State v. Dedman (1982), 230 Kan. 793, 640 P.2d 1266. This concept is found within the law of Indiana, which recognizes the separation between the courts and the prosecutor. See, e.g., Meyers v. State (1977) 266 Ind. 513, 517, 364 N.E.2d 760, 763 (“It is the function of the prosecuting attorney, not the court, to investigate crimes and bring criminal charges.”); Tinder v. Music Operating, Inc. (1957) 237 Ind. 33, 142 N.E.2d 610 (courts may enjoin acts of prosecutor where property rights are threatened), reh’g denied.
Nevertheless, in the case before us, Schweitzer does not request us to revisit the separation of powers constitutional issue. Had she done so, I would vote to reverse. Be that as it may, the constitutional challenge here is confined to Article 1, § § 16 and 18.
Appellant’s argument has more than a semblance of merit insofar as it categorizes the statute as one which assumes that all incarcerated persons will be able to demonstrate the requisite degree of rehabilitation within the same 365 day time frame. Obviously, persons react to positive and rehabilitative influences at different rates, depending upon their respective backgrounds, personalities and mental capabilities, as well as upon the quality and quantity of rehabilitative programs provided. When this seemingly arbitrary, but not per se invalid, time constraint is coupled with the absolute veto power vested in the prosecutor, it would appear to violate the constitutional mandate found in Art. 1, § 18, that our penal code be based on “principles of reformation.” In this regard, I reiterate my disagreement with the court’s analysis in Beanblossom.
However, I must acknowledge that the seemingly arbitrary 365 day time limitation has the effect of conferring an arguably appropriate degree of finality to sentences imposed, unless the prosecutor consents to a modification. It therefore requires a unanimous agreement for modification between and among the defendant, the court and the prosecutor. I am unable to conclude that this limitation upon trial court discretion is unconstitutional within the framework of the two constitutional provisions relied upon by Schweitzer. Although a different statute might achieve a more salutary result with respect to recognition of rehabilitation fully accomplished, that is a matter of policy constitutionally left to the legislature. In this sense, then, I agree with the suggestion in Beanblossom that the new arguments made here by Schweitzer, as were the arguments made by Beanblossom, are best made to the General Assembly.
*494In conclusion, I must join the majority in rejecting Schweitzer’s argument that the statute in question denies the opportunity for rehabilitation and reformation which is the cornerstone of the provision of Article 1, § 18.
During her incarceration, Schweitzer has made extraordinary progress towards becoming a productive member of society. She has dramatically improved her mental and physical well-being through education, religious and community pursuits.2 Incarceration of persons in general, and certainly that of Schweitzer in particular, is not inconsistent with the purpose or the reality of rehabilitation. To the contrary, Schweitzer’s rehabilitation might well not have occurred but for her imprisonment and the wide range of programs, activities and direction provided by the Indiana Women’s Prison. Therefore, incarceration does not run afoul of the principle that our criminal justice system is based upon rehabilitation, where possible. Fointno v. State (1986) Ind., 487 N.E.2d 140.
Subject to the observations above set forth and subject to my disagreement with the underlying premises of Beanblossom v. State, supra, I concur in the decision of the majority-
. The Beanblossom case, supra, 637 N.E.2d at 1346, inexplicably holds that the sentence modification statute in question does not violate "Article 3, § 22” or Article 7, § 1. Because there is only one section to Article 3, I can only conclude that the decision referred to § 1, the separation of powers provision. In any event, as set forth above, my view is strongly contrary to the reasoning and holding set forth in Beanblossom.
. The trial court made the following findings when Schweitzer's first sentence modification from 50 to 20 years was entered on July 26, 1989:
"2. Since her incarceration at the Indiana Women's Prison, [Schweitzer] has received high performance evaluations. She is described by the prison officials as being diligent and conscientious.
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4. While incarcerated [Schweitzer] has completed an Office Skills Business Program and two years of accounting. She has also studied typing and is now studying shorthand. In addition, [Schweitzer] has completed some college correspondence courses and is presently enrolled in the Martin Center College Program at the Women’s Prison. [Schweitzer] has received straight A’s in subjects that include English Composition, English Literature, Math, Fine Arts, Business and Biology. In February 1989, [Schweitzer] received one of the Indiana State Vocational Educational Achievement Awards of Excellence.
5. [Schweitzer] has been very active in the religious programs at the Women’s Prison. She has served on the Chaplin's Advisory Council, attends Bible study groups and participates in the church choir.” Appellant's brief at 5. ■