dissenting:
There is no more confusing area of criminal and constitutional law than the issue of double jeopardy and the related problems of statutory construction. The majority opinion tackles the thicket boldly and I depart from the views it expresses with respect. At the time of the original decision in this case on March 14, 1980, I expressed the view that the result reached by the opinion of the Chief Justice on behalf of the Court “[was] constitutionally mandated under current standards.” I now find it necessary to withdraw that concurring opinion and to take a most hesitant different view from that of the majority in light of the recent decision of the United States Supreme Court in Whalen v. U. S., 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). I enter the fray hesitantly because, unlike Mr. Justice Rehnquist, I find the double jeopardy opinions of his Court far from clear.1
I
Initially, I am still troubled by the restricted approach taken by the majority in this case. The opinion is limited in that it considers in isolation only the statutory sections involved in the instant appeal. My fear is that the limited and isolated, subsection by subsection, approach may, in this area, be counterproductive in light of a general purpose of the Code “[t]o differentiate upon reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefor.” 11 Del.C. § 201(4). I therefore express concern and suggest that we, perhaps uncharacteristically, should at least attempt to take a broader sweep in an effort to assure a more orderly and more rational administration of the penal provisions as a whole.
Specifically, the appeal in this case raises a question factually akin to that faced by this Court in Davis v. State, Del.Supr., 400 A.2d 292 (1979) and Bey v. State, Del.Supr., 402 A.2d 362 (1979). In those cases, as a matter of statutory construction, this Court determined that, “[w]hen it is alleged that a robber displayed a deadly weapon”, the General Assembly “intended to replace the weapons statute, § 1447, with the special aggravated crime of first-degree robbery, *133§ 832”. Davis v. State, supra, 400 A.2d 296, 297; 11 Del.C. § 832(a)(2), § 1447.2 Thus, the convictions under § 1447 were reversed.
In the present case, the Court determines that convictions for assault in the first degree under 11 Del.C. § 613(1) and for possession of a deadly weapon during the commission of a felony under 11 Del.C. § 1447 can stand. But the Court also holds that the defendant cannot be subjected to two sentences on the dual convictions due to the constitutional limitation of double jeopardy which proscribes multiple punishments for the same offense. Thus, the case is remanded for resentence on one of the convictions with the selection at the State’s option.
I agree there is nothing to suggest that the General Assembly intended that either statute was to be deprived of its status as a basis of prosecution due to its relation to the other and that both convictions can withstand constitutional attack. But, even accepting arguendo the conclusion of the majority as to double jeopardy and resen-tencing, I do not think Davis should be ignored. I note that: the Davis case has been urged by the defense as a ground for reversal; it is frequently difficult in an isolated case to appreciate the impact of a decision on the general administration of the codified law; and the disposition here leaves two viable approaches in similar situations with serious anomalous results. I think the State court of last resort, sitting en banc, with judicial responsibility for uniformity in criminal law interpretation, should, as urged by the State, reconsider Davis on its merits in this appeal.3
II
Since, in this case, we unanimously have decided, quite correctly in my view, that the General Assembly intended to authorize simultaneous prosecution and cumulative punishment for assault in the first degree under 11 Del.C. § 613(1) and for possession of a deadly weapon during the commission of a felony under 11 Del.C. § 1447, we must face the difficult problem of double jeopardy.
In the initial opinion in this case, the majority made a noble effort to follow federal law in reaching its conclusion. See, for example, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665 (1969), Simpson v. United States, 435 U.S. 6, 11-12, 98 S.Ct. 909, 913, 55 L.Ed.2d 70, 76 (1978); Jeffers v. United States, 432 U.S. 137, 150, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168, 180 (1977). The conclusion that double jeopardy proscribed double punishment, which had been conceded by the State in the en banc oral argument, must, as recognized by the majority, be re-examined in the light of Whalen. It is clear from Whalen that four Justices of the United States Supreme Court [Justices White, Blackmun, Rehnquist and Chief Justice Burger] would hold that the double jeopardy limitation of the federal constitution imposed on the states by the Fourteenth Amendment does not prohibit two sentences in this case. *134It is not clear from the five member majority decision in Whalen what those members would hold on the instant question. Justice Rehnquist’s summary notwithstanding, I find it difficult to believe that Justices Brennan and Marshall held or would hold “that Congress’ intent to impose cumulative punishments at a single criminal proceeding completely controlled the question of double jeopardy.” That leaves three Justices [Justices Stewart, Stevens and Powell],
It seems to me that certain things can be said about the majority opinion in Whalen. First, it should be remembered that the Court was deciding a case, not writing a treatise. Second, in achieving a majority, a worthwhile task, the opinion appears properly to be one of accommodation as perhaps best illustrated by the comment that “[t]he Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so.” 445 U.S. at 689, 100 S.Ct. at 1436, 63 L.Ed.2d at 722 (emphasis added). Third, while the Court “is not [ready] to say that there are not constitutional limitations upon [Congress’ ‘power to define criminal offenses and to prescribe the punishments to be imposed upon those guilty of them’]”, its citations to support such limitations were narrowly selected with design and did not extend to the double jeopardy situation present in this case. See ftnt. 5, 445 U.S. at 689, 100 S.Ct. at 1436, 63 L.Ed.2d at 722. Fourth, the Court is searching for and open to different solutions relating to existing concepts. For example, there is a clear recognition of the legislative role under the constitutional principle of separation of powers and a clear suggestion of a problem of judicial usurpation. This recognition could well lead to a different approach in defining “same offense” than the elemental approach of recent years.
As I read Whalen, the Court has taken a turn, not ninety degrees, but decipherable. There has been a recognition that recent opinions have been “[demanding] more of the Double Jeopardy Clause than it is capable of supplying.” Western & Drubel, Toward a General Theory of Double Jeopardy, 1978 Supreme Court Review, 81, 113. Furthermore, as I see it, there is implicit in the Whalen majority some support for the proposition that cumulative punishments may be imposed in a single trial if Congress defined the offenses separately and authorized cumulative punishments. See also Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 153 L.Ed.2d 187 (1977). Based on this reading, which I hope rises above blind speculation to at least educated surmise, I conclude the concept of double jeopardy as embodied in the Fourteenth Amendment of the United States Constitution does not proscribe the consecutive punishments which were imposed in this case.4
Finding no jeopardy violation, I am not compelled to decide the appropriate procedure for resentencing.5 As to other points raised by the appeal, I join in the conclusions of the majority and find no reversible error. Accordingly, I would affirm the judgment of the Superior Court.
. Justice Rehnquist summarized Whalen on double jeopardy in the following manner: “[S]ix Members of this Court held that Congress’ intent to impose cumulative punishments at a single criminal proceeding completely controlled the question of double jeopardy. . Three other Members of this Court, including myself, argued that the permissibility of cumulative punishments in the same criminal proceeding presented no double-jeopardy question whatsoever.” Busic v United States, - U.S. -, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). Not surprisingly, his summary conclusions lean as strongly as possible to his own point of view on the merits.
. For present purposes it is not necessary to further complicate the issues by considering that Davis involved attempted robbery. But see Smith v. State, Del.Supr., 412 A.2d 331 (1980).
. In this area of the law, perhaps all anomaly cannot be eliminated. But anomalous results created by statutory construction, as in Davis, should give one pause and cause one to question whether the results were truly legislatively intended. Given the position of the majority, it is neither necessary nor desirable to engage in a reconsideration of Davis in this dissent. But, lest this view be thought frivolous, I note the following questions which might be included in a reconsideration. With regard to temporal sequence, did not the same Code that enacted the robbery statute simultaneously enact the weapons statute? Was not the legislative intent clearly expressed in the 1976 amendment adding the present § 1447(c) providing for consecutive sentencing? Is not the 3 year mandatory sentence for the first offense of robbery in the first degree, added by amendment in 1975, applicable even when a deadly weapon is not apparently displayed? Was not the statutory construction in Davis influenced by jeopardy concepts of double punishment? Does not Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) relied on in Davis relate only to dual sentencing? Compare Busic v. United States, supra.
. This case has been argued on the basis of the Federal Constitution. Barring special circumstances, such as federal constitutional interpretation shocking to the conscience of civilized legal scholarship or diverse historic development, it is certainly preferable that interpretations of corresponding provisions in state and federal constitutions, which share a common history, be the same. On the instant record, I do not find any special circumstances present in this case. This is not to say, however, that there could not be State constitutional limits to some cumulative punishment cases. But it should be emphasized that this case has been submitted in the context of federal law.
. Compare Busic v. United States, supra, ftnt. 19, - U.S. at -, 100 S.Ct. at 1756, 64 L.Ed.2d at 393.