dissenting.
¶25 In my view, State v. Benak was wrongly decided. Hensley is not protected by Proposition 200 and should have been sentenced to prison after he violated probation on numerous occasions. His probation should not have been simply terminated without imprisonment. I would reverse the trial court’s contrary conclusion.
¶ 26 In Benak another department of this court determined that notice that a defendant would not be entitled to mandatory probation under § 13-901.01 because of a prior violent offense must be provided by an appropriate formal pretrial allegation pursuant to § 13-604.04. 199 Ariz. at 337, ¶ 14, 18 P.3d at 131. This determination depended on § 13-901.01’s reference to the definition of “violent crime” in § 13-604.04, and on two cases requiring pretrial allegations of prior convictions, State v. Rodgers, 134 Ariz. 296, 306, 655 P.2d 1348, 1358 (App.1982), and State v. Guytan, 192 Ariz. 514, 522-23, 968 P.2d 587, 595-96 (App.1998). See 199 Ariz. at 335-37, ¶¶ 10, 14, 18 P.3d at 129-31. Both Rodgers and Guytan involved allegations pursuant to a statute which expressly requires timely pretrial allegations. See A.R.S. § 13-604(P). Therefore those cases do not help determine whether such an allegation is required under § 13-901.01, which has no such express requirement. And a close examination of the pertinent statutory language reveals that the allegation requirement of § 13-604.04 is not referable to § 13-901.01, which preceded it chronologically, but rather to the substance of § 41-1604.15 which was amended exactly contemporaneously with the enactment of § 13-604.04 in House Bill 2475 and published at 1997 Arizona Session Laws, ch. 6, § 3.5
*81¶ 27 Since December 1996, after its enactment by voter initiative, § 13-901.01 has mandated probation for personal drug use under subsection (A), unless the offender was a previous violent criminal pursuant to subsection (B) or was a repetitive offender pursuant to subsection (G). Section 13-604.04 only came into existence in 1997, when it was enacted in tandem with an extensive rewrite of § 41-1604.15, which requires mandatory prison for violent crimes committed while the offender is under the influence of drugs. Section 13-604.04(A) thus requires that, to effectuate the mandatory prison time under § 41-1604.15, the State must allege before trial that the crime charged in the case is a violent one. The allegation required under § 13-604.04(A) is “that the defendant committed a violent crime____” (Emphasis added). Such an allegation is appropriate, as in a case under § 41-1604.15,6 where the trial on the allegedly violent offense has not yet taken place and therefore it could not be alleged that defendant was convicted of a violent crime. But an allegation under § 13-604.04(A) “that the defendant committed a violent crime” does not and cannot invoke § 13-901.01(B), which provides that a person “convicted” of a violent crime is not protected by the mandate of probation of § 13-901.01(A). In a given case, a prosecutor could prove beyond any question that a defendant previously committed a violent crime, but such proof would clearly fail to invoke 13-901.01(B) unless the State’s proof also established a prior conviction.7
¶ 28 The panel in Benak argued that a textual revision accomplished by Senate Bill 1279 in 1999 indicated a legislative intention to apply the allegation requirement of § 13-604.04(A) to cases where a drug offender had a prior violent crime. The panel asserted:
[T]he reference in section 13-901.01(B) to the definition of violent crime was changed from section “41-1604.15, subsection B” to section 13-604.04, with no specification of a particular subsection. 1999 Ariz. Sess. Laws, ch. 261, § 12. [Section 41-1604.15(B) was renumbered as section 13-604.04(B) ]. It thus appears that the reference in section 13-901.01 to 13-604.04 was intended to incorporate all of section 13-604.04, including the notice requirement.
199 Ariz. at 336, ¶ 11,18 P.3d at 130.
¶29 The specific reference, however, in § 13-901.01(B) to a definition appearing in a particular subsection of former § 41-1604.15 made some sense, since the latter statute had reference to more than one definition, and indeed referred the reader, for example, to Title 13, which again referred to Title 36, for an explanation of what was meant by the term “controlled substance.” In any event, the deletion of the superfluous reference to “subsection B” for a definition is readily explained by the obvious circumstance that § 13-604.04 has only one definition in it and *82that palpably is in subsection B. It strains logic, on the other hand, to contort a reference to “a violent crime as defined in § 13-604.04” to make it impose a procedural requirement appearing in a separate subsection. See A.R.S. § 13-901.01(B) (emphasis added). And it is obvious that § 13-901.01(B) was amended in 1999 because through an apparent oversight the statute had referred to a definition purportedly to be found in § 41-1604.15 but which was not there.
¶ 30 I agree with the Benak panel that Bolton is not entirely dispositive of the issue before us here, because it presented a different argument,8 but I thoroughly disagree with that panel’s treatment of Bolton in every other respect. This court in Bolton wholly heeded the authoritative directive of the people of this state that minor drug offenders, but not seriously recidivist criminals, should be treated and not imprisoned. The people did not direct lenient treatment of minor drug offenders and then leave to state prosecutors and defense lawyers dis-positive power to include serious recidivists in that protection. As we said in Bolton:
[S]ection 13-901.01 does not require that the State allege prior convictions before they are deemed to exist. Therefore, we hold that whether a defendant is entitled to be sentenced pursuant to section 13-901.01 is a matter of law to be decided by the court; it is not a matter of pleading or plea bargaining to be decided by the State.
Id. at 203, 945 P.2d at 1334. This holding is authoritative on the question whether § 13-901.01(B) must be obeyed. Bolton is not explainable on any other basis, such as that “it involves a trial court’s authority to reject a profferd [sic ] plea agreement.” The trial judge could not have rejected Bolton’s plea unless he were correct on the law in his conclusion that probation was not mandated notwithstanding that the priors were not alleged. Bolton emphatically does not rely on the inherent discretion of a trial judge as to a plea bargain, but stands on the trial court’s correct determination that the defendant had priors whether the state did or did not allege them.9
¶ 31 The Benak panel found further support for its position in the fact that § 13-604(P) requires a pretrial allegation of priors, missing the point that the legislature prescribed the enhanced punishments of § 13-604 and was thoroughly competent to provide prosecutorial responsibility and discretion with regard to alleging the circumstances that would require such punishments, while here the people have made an extraordinary directive regarding crime and punishment and made no allowance for it to be disregarded. Further, § 13-901.01(B) does not enhance a felon’s punishment as does § 13-604. Section 13-901.01(B) makes a felon punishable as any other felon not subject to the extraordinary directive of § 13-901.01(A) that certain felons shall not go to prison.
*83¶32 In this case, Hensley was a violent felon, and he was not entitled to mandatory probation under § 13-901.01. The trial court erred in simply terminating Hensley’s probation after he repeatedly violated it, and another panel of this court, in State v. Benak, erred in giving lawyers the ability to avoid a clear public directive and allowing them to shield violent drug offenders from the ordinary punitive provisions of our criminal code.
¶ 33 Because I conclude that the majority errs here in following Benak, I dissent.
. The majority asserts that, in moving the definition of "violent crime” from Title 41 to Title 13 in 1997, the legislature indicated its intention to have the new § 13-604.04 apply to situations covered in Title 13, such as those arising under section 13-901.01. But § 13-901.01 continued for two years after the enactment of § 13-604.04 to refer to Title 41 for a definition of "violent crime.” If the legislature meant to signal that *81the new § 13-604.04 would apply in Title 13, it missed its own sign. The apparent sense in placing the requirement of § 13-604.04 that the violent nature of a charged offense be alleged before trial in Title 13 arises from its close relationship to the requirement under § 13-604(P) that the dangerous nature of charged crimes be similarly alleged.
. The majority contends that the allegation requirement of § 13-604.04 does not apply to § 41-1604.15 because “the latter statute also requires that the person commit the offense while under the influence of specified drugs.” The majority has confused what is necessary with what is sufficient. An allegation under § 13-604.04 is necessary, but not sufficient, to invoke the mandatory prison term called for by § 41-1604.15. That it is not sufficient to invoke mandatory prison does not make it inapplicable to the determination whether prison is mandated. Section 13-604.04 merely requires that a charged offense be denoted as "violént” if the state seeks mandatory prison, just as § 13-604(P) requires a similar designation of offenses deemed "dangerous.” Parenthetically, a crime designated as “violent” for purposes of § 41-1604.15 need not be intrinsically so; theft, or burglary, or DUI, could be “violent” crimes if a deadly weapon or dangerous instrument were involved, or injury resulted. Thus, the allegation requirement of § 13-604.04 would serve a notice function as to such charged crimes which would be somewhat superfluous if applied to a prior conviction, the “violent” nature of which would be determined by the nature of the prior offense and apparent from the documentation of the conviction.
. The majority says that the legislature really meant "convicted,” not just "committed.” But the legislature has shown that it is quite capable of using these distinct words in distinct ways. See § 13-604(P) (providing for allegation of prior "conviction” or that new crime was “committed” while defendant was released on bond).
. In Bolton the defendant attempted to apply the general allegation requirement of § 13-604(P) to repetitive drug priors under § 13— 901.01(F)[which is now (G) ]. Id. at 202-03, 945 P.2d at 1333-34. Here, the defendant is seeking to apply a different, special allegation requirement, enacted in a bill that addressed the commission of a violent crime while under the influence of drugs, to his own situation, which is that of a drug offender with a violent past.
. Benak is also wrong for reasons not germane to the instant appeal. The state did timely allege a violent prior, a class three felony aggravated assault, in Benak. 199 Ariz. at 334, ¶ 3, 18 P.3d at 128. After announcing that "dangerous” and "violent” are separate concepts, the panel muddled them, asserting that an "allegation of non dangerous prior felonies certainly does not provide notice that the State intended to allege a violent crime.” Id. at 335, ¶ 7, 18 P.3d at 129.
This statement in general may be true or it may be false, but as applied to Benak it was clearly wrong. Benak’s prior as alleged was a violent offense. The panel apparently misread the definition of violent crime, writing, “[a] ‘violent crime,’ in addition to being ‘any criminal act that results in death or physical injury,' is one that involves ‘any criminal use of a deadly weapon or dangerous instrument.’ " Id. (citing A.R.S. § 13-604.04(B)). Actually, the definition set forth is merely inclusive, and the elements are in the alternative; either resultant death or injury, or the use of a deadly weapon or dangerous instrument, suffices to make a crime "violent.” A.R.S. § 13-604.04(B). Class three felony aggravated assault necessarily involves either injury or a deadly weapon or dangerous instrument. A.R.S. §§ 13 — 1204(A)(1), 13-1204(A)(2), 13-1204(B) and (C). Surely the allegation of a violent prior felony does provide notice that the State intended to allege a violent crime.