Kirk Hudson appeals his conviction, pursuant to a plea agreement, on one count of delivery of cocaine in violation of W.S. 35-7-1031(a)(ii) (June 1988 Repl). He raises the same issues that were raised in Billis v. State, No. 88-250 [800 P.2d 401] (Wyo. Oct. 5,1990), concerning the constitutionality of W.S. 7-13-301 (June 1987 Repl.) (“new 301”).
We affirm.
Acting on information supplied by an informer, law enforcement authorities arrested Mr. Hudson for delivery of two ounces of cocaine to the informer. Under a plea agreement, in exchange for Mr. Hudson’s plea of guilty and his cooperation with law enforcement authorities investigating drug activity, the state agreed to recommend a sentence of two years supervised probation and to consider giving consent to probation without entry of adjudication of guilt under “new 301.” The agreement was dependent upon the results of the presentence investigation report. At the sentencing proceeding after the district court received the presentence investigation report, the state refused to consent to “new 301” treatment. The district court judge then imposed sentence. Although the prosecutor gave no reasons for the state’s refusal to consent, we know that the prosecutor had agreed to consider giving consent depending on what the presentence investigation report revealed. After review, we learned that, in addition to other information, the report contains information about Mr. Hudson’s interview with the probation agent. In that interview Mr. Hudson admitted he had used and sold cocaine before the delivery in question. Following the district court judge’s imposition of sentence, this appeal followed.
Mr. Hudson raises issues identical to those raised in Billis v. State, 800 P.2d 401 (Wyo.1990):
1. Whether W.S. 7-13-301 (June 1987 Repl), requiring the state’s consent to the court’s deferring further proceedings and placing a defendant on probation without entry of a judgment of conviction, infringes on the judicial department’s sentencing power in violation of the principle of separation of powers explicitly stated in Wyo. Const. art. 2, § 1.
2. Whether 1987 Wyo.Sess.Laws, ch. 157, § 3, enacting W.S. 7-13-301 (June 1987 Repl.), was enacted in violation of Wyo. Const. art. 3, § 20, which proscribes altering or amending a bill during its passage through the legislature so as to change the bill’s original purpose.
3. Whether 1987 Wyo.Sess.Laws, ch. 157, § 3, enacting W.S. 7-13-301 (June 1987 Repl.), was enacted in violation of Wyo. Const, art. 3, § 24, which mandates the passage of a bill containing only one subject which must be clearly expressed in the bill’s title.
4. Whether the prosecutor’s refusal to consent to sentencing under § 7-13-301 was arbitrary and an abuse of discretion and therefore violated Wyo. Const, art. 1, §§ 2 and 7.
Although the state asserts that Mr. Hudson has not preserved these issues since he failed properly to raise them below, we have chosen to consider them as explained in State v. Lowry, No. 88-312 (Wyo. Oct. 5, 1990); Vigil v. State, No. 88-310 (Wyo. Oct. 5, 1990); McIver v. State, No. 88-311 (Wyo. Oct. 5, 1990); Moon v. State, No. 88-304 (Wyo. Oct. 5, 1990); Magarahan v. State, No. 89-4 (Wyo. Oct. 5, 1990); and Billis v. State, No. 88-250 (Wyo. Oct. 5, 1990) [800 P.2d 401],
Our decisions in Mollman, 800 P.2d 466, Lowry and its companion cases just referred to, especially Billis, 800 P.2d 401, are dispositive here. We hold that “new 301” is constitutional in terms of the issues raised here and that the prosecutor’s refusal to consent to “new 301” treatment in Mr. Hudson’s case was neither arbitrary nor an abuse of discretion in violation of Wyo. *473Const. art. 1, §§ 2 and 7. Accordingly, we affirm.
URBIGKIT, C.J. filed a dissenting opinion in which MACY, J., joins.
MACY, J., filed a dissenting opinion in which URBIGKIT, C.J., joins.