concurring in part and dissenting in part.
¶ 49 I concur with the majority’s decisions to affirm defendant’s felony conviction for attempted distribution of marijuana and to correct the mittimus. I respectfully dissent from its decision to vacate her petty offense conviction for possessing marijuana.
I. Introduction
¶ 50 I dissent on an issue that seems superficially easy enough; Should we apply the ameliorative change found in article XVIII, section 16(3) of the Colorado Constitution (section 16(3)), which eliminated criminal liability for possession of small amounts of marijuana, to defendant’s petty offense conviction for possessing less than two ounces of marijuana?
¶ 51 After all, we can look to the amendment’s effective date, which is found in article XVIII, section 16(9) of the Colorado Constitution (section 16(9)). It states that, “[ujnless otherwise provided by this section,” all of section 16’s provisions “shall become effective upon official declaration of the vote” by the Governor’s proclamation.
¶ 52 Defendant committed the petty offense in October 2011; a jury convicted her in August 2012; the court sentenced her in November 2012; and the Governor issued the proclamation making all of section 16 effective in December 2012, 2013 Colo. Sess. Laws 3300. So it would seem almost automatic that we would conclude that section 16(3) does not apply to defendant’s case.
¶ 53 But reaching such a conclusion is neither automatic nor easy. This is a tricky issue because it involves synthesizing
• supreme court decisions establishing the rules for determining whether we should apply constitutional amendments retroactively with
• supreme court decisions from the 1970s that analyzed the effect of statutes amending criminal sentences with
• subsequent supreme court decisions that appeal’ to add a step to the analysis that did not exist in the 1970s.
¶ 54 I greatly respect the thoughtful heavy lifting that my colleagues in the majority have done to reach the conclusion that section 16(3) applies retroactively to defendant’s case. But I must part company with them because I read the tea leaves differently. To begin to explain my differing view, I must return to the 1970s and the genesis of the vexing complexity that we encounter in this case.
II. The Beginning
A. The 1972 Revision of the Criminal Code
¶55 Effective July 1, 1972, the General Assembly completely revised Colorado’s criminal code. Ch. 121, sec. 4, 1971 Colo. Sess. Laws 490; People v. Vigil, 127 P.3d 916, 931 (Colo.2006); People v. Jefferson, 748 P.2d 1223, 1228 (Colo.1988). These sweeping changes included a new sentencing scheme for felonies. Ch. 121, sec. 1, § 40-1-105, 1971 Colo. Sess. Laws 390; People v, Herrera, 183 Colo. 155, 159, 516 P.2d 626, 627 (1973). The new scheme reduced the length of sentences for most felonies. Herrera, 183 Colo. at 159, 516 P.2d at 627.
¶ 56 The new criminal code made two points about its applicability.
1. It applied to “any offense ... committed on or after July 1, 1972.” Ch. 121, sec. 1, § 40-1-103(1), 1971 Colo. Sess. Laws 389.
2. It did not apply to “any offense committed prior to July, 1,1972.” § 40-1-103(2), 1971 Colo. Sess. Laws at 389, Those offenses were to be “tried and disposed of according to the provisions of law existing at the time” when they were committed “in the same manner as if this code had not been enacted.” Id.
¶ 57 The new code also added the statute that eventually became section 18—1— 410(l)(f), C.R.S. 2014. The original statute stated in 1971 that defendants, in postconviction motions, could ask courts to grant them relief if “there has been significant change in the law, applied to applicant’s ... sentence, requiring in the interests of justice retroactive application of the changed legal stan*1139dard.” Ch. 121, sec. 1, § 40-1-510(1)(f), 1971 Colo. Sess. Laws 403.
B. People v. Herrera
¶ 58 The first supreme court case to analyze section 40—1—510(1)(f), held that it was unconstitutional. Herrera, 183 Colo. at 161-63, 516 P.2d at 628-29. The basis for this holding was that “the legislature [had] sought to confer upon the courts the express power to review sentences after conviction and exhaustion of appellate remedies.” Id. at 161, 516 P.2d at 628. By doing so, the legislature had attempted to vest the courts with the exclusive power of Colorado’s Governor to commute sentences. Id. at 161-62, 516 P.2d at 628-29.
¶ 59 In reaching this result, the supreme court contested section 40—1—510(1)(f), with section 40-1-509. Ch. 121, sec. 1, § 40-1-509, 1971 Colo. Sess. Laws 401-02. This statute, which today is found in section 18—1— 409, C.R.S. 2014, allowed courts to review sentences in the course of “the appeal process.” Herrera, 183 Colo. at 162 n. 2, 516 P.2d at 628 n. 2.
¶ 60 The supreme court discussed Herrera’s holding in several cases decided in the first half of 1974. For example, in People v. Arellano, 185 Colo. 280, 282-83, 524 P.2d 305, 306 (1974), it explained the “constitutional rule” that Herrera had announced. It was “that after conviction and exhaustion of appellate remedies, relief from a sentence validly imposed may not be obtained through the judiciary, but rather the remedy therefor lies in the executive department by way of commutation,” Id.
C. Changes in 1973 and 1974
¶ 61 But four things happened in 1973 and 1974 that relegated Herrera to the analytical sidelines for the purposes of this case. First, in 1973, the legislature amended section 40-1-103(2) by adding the phrase, “[e]xcept as otherwise provided by section 40-1-510” at the beginning of the subsection. Ch. 152, sec. 1, § 40-1-103(2), 1973 Colo. Sess. Laws 533.
¶ 62. Second, in mid-1974, the supreme court decided People v. Thomas, 185 Colo. 395, 526 P.2d 1136 (1974). Thomas distinguished Herrera, noting that the defendant in Thomas had “filed his [section 40-1-510(l)(f)] motion before his conviction had become final[,]” so the trial court had “jurisdiction to entertain” the motion. Id. at 397, 525 P.2d at 1137.
¶ 63 The supreme court then concluded that (1) the legislature’s 1973 amendment of section 40-1-103(2) had made clear that the .changes in sentencing wrought by the new criminal code should “apply wherever constitutionally permissible[,]” id. at 397, 525 P.2d at 1137; (2) section 40-l-510(l)(f) “expressly provides for the application of [these] legal standardsf,]” which was “especially appropriate where a change in the law reducing the sentence intervenes before conviction is had and sentence is imposed[,]” id. at 397-98, 525 P.2d at 1138; and (3) “[t]he view that amen-datory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law[,]” id. at 398, 525 P.2d at 1138.
¶ 64 Third, in late 1974, the supreme court decided People v. Carter, 186 Colo. 391, 527 P.2d 875 (1974). As is relevant to this appeal, Carter addressed the contention that section 40-1-509 was unconstitutional for the same reason that Herrera had concluded that section 40—1—510(l)(f) was unconstitutional: it invaded the Governor’s prerogative to grant commutations. But the court rejected that comparison, holding that “the appellate review of sentences by this [c]ourt, before finality of conviction, as allowed by section 40-1-509, is a proper judicial function....” Id. at 395, 527 P.2d at 877. The court added that “for the purposes of reviewing and granting relief from sentences validly imposed the judgment and sentence is not final until after appellate remedies for review have been exhausted.” Id:
¶ 65 Fourth, at the end of 1974, the supreme court decided People v. Thornton, 187 Colo. 202, 529 P.2d 628 (1974). The defendant in that case appealed his sentence under section 40-1-509. He asserted that his sentence was “unduly harsh and excessive” in light of a 1973 legislative amendment. Id. at 203, 529 P.2d at 628. The amendment pro*1140vided for indeterminate sentencing for the kind of felony that the defendant had committed. Ch. 145, sec. 2, § 39-11-304(2)(a), 1973 Colo. Sess. Laws at 504.
¶ 66 The supreme court decided to apply Thomas to the 'defendant’s appeal, and it held that the defendant was “entitled to the benefits of the indeterminate sentencing provisions” of the 1973 amendments. Thornton, 187 Colo. at 203, 529 P.2d at 629. And the court concluded that, although the “procedure followed in” Thomas arose out of section 40—1—510(1)(f), “there was no valid reason not to grant similar relief under the Thomas rule, where, as here, the application for relief is sought by direct appeal under section 40-1-509.” Id. at 203, 529 P.2d at 628; accord People v. Race, 187 Colo. 204, 205, 529 P.2d 629, 630 (1974)(the defendant could seek the benefits of amendatory legislation in an appeal filed under section 40-1-509).
D. The Rest of the 1970s
¶ 67 Thomas held sway for the rest of the decade. In a series of cases, the supreme court concluded that defendants were entitled to new, reduced sentences that were authorized by amendatory legislation. E.g., People v. Bloom, 195 Colo. 246, 251-52, 577 P.2d 288, 292 (1978); Glazier v. People, 193 Colo. 268, 269, 565 P.2d 935, 936 (1977); People v. Truesdale, 190 Colo. 286, 290, 546 P.2d 494, 497 (1976); People v. Griswold, 190 Colo. 136, 137-38, 543 P.2d 1251, 1252-53 (1975); Shook v. Dist. Court, 188 Colo. 76, 78, 533 P.2d 41, 42 (1975); McClure v. District Court of Fourth Judicial Dist., 187 Colo. 359, 361, 532 P.2d 340, 342 (1975); Naranjo v. Dist. Court, 189 Colo. 21, 23, 536 P.2d 36, 37 (1975).
¶ 68 Divisions of this court reached the same conclusion. People v. Palmer, 42 Colo.App. 460, 461-62, 595 P.2d 1060, 1062 (1979); People v. Jenkins, 40 Colo.App. 140, 143, 575 P.2d 13, 15-16 (1977).
¶ 69 The supreme court also cited Thomas in the mid-1980s. People v. Montgomery, 737 P.2d 413, 414 n.4 (Colo.1987)(recognizing, in dicta, that the prosecution and the defense had reached a stipulation based on Thomas); People v. Emig, 676 P.2d 1156, 1158 n. 7 (Colo.1984)(noting, in dicta, that the trial court had applied Thomas to the defendant’s sentence).
III. The Approach Changes
¶ 70 If it had not done so before, the legislature, in the late 1970s, began to add language to criminal statutes that stated that they only applied “to offenses committed on or after” a particular date. The supreme court held, as a result, that defendants were not entitled to the benefits of sentencing amendments when statutes included such language. See, e.g., People v. Macias, 631 P.2d 584, 586-87 (Colo.1981); People v. Stewart, 626 P.2d 685, 686 (Colo.1981); People v. Lopez, 624 P.2d 1301, 1302 (Colo.1981); Tacorante v. People, 624 P.2d 1324, 1329 n. 14 (Colo.1981); People v. Steelman, 200 Colo. 177, 179, 613 P.2d 334, 335 (1980); People v. McKenna, 199 Colo. 452, 456-57, 611 P.2d 574, 576-77 (1980).
¶ 71 Divisions of this court reached the same result. People v. Pineda-Eriza, 49 P.3d 329, 333 (Colo.App.2001); People v. Kemp, 885 P.2d 260, 264-65 (Colo.App.1994); People v. Collyer, 736 P.2d 1267, 1268-69 (Colo.App.1987).
¶ 72 The supreme court explained the rationale for the cases that held that defendants were not entitled to the benefits of amendatory legislation in People v. McCoy, 764 P.2d 1171 (Colo.1988). The court observed that its jurisprudence had set out two rules.
¶ 73 First, “a defendant should receive the benefit of amendatory legislation mitigating the penalties for crimes committed prior to the new legislation when the amendatory legislation expressly provides for retroactive application.” Id. at 1174 (emphasis added). It cited Thomas, Thornton, and Naranjo as authority for this first rule. Id,
¶ 74 Second, “a defendant does not receive any ameliorative benefit when retroactive application ... is clearly not intended by its own terms.” Id. It cited Lopez, Stewart, Macias, and Collyer as authority for this second rule. Id.
*1141¶ 75 Then, because the amendatory legislation stated that it applied “on or after” a particular date, the court held that the defendant would not receive the benefit of the statutory change. Id, at 1174-75. The court added that, “ ‘[w]hen the language of a statute is clear, we must give the statute effect as written.’” Id. at 1174 (quoting Macias, 631 P.2d at 587).
¶ 76 The supreme court reiterated that it would apply these two rules to amendatory legislation arguments in Riley v. People, 828 P.2d 254 (Colo.1992). The first rule flowed from Thomas: The defendant in that case was “entitled to the benefits of the new legislation that became effective prior to his initial sentencing, noting that such conclusion was consistent with legislative intent,” Id. at 258.
¶ 77 The second rule flowed from decisions that the court made after Thomas: “In subsequent cases we have emphasized that a defendant is not entitled to the ameliorative effects of amendatory legislation if the General Assembly has not clearly indicated its intent to require such retroactive application.” Id. (emphasis added). The court cited McCoy and Macias as support for this second rule.
¶78 Riley involved two statutes that required the court to employ both rules. It applied the first rule to a statute that reduced sentences for certain sentences in the presumptive range for “persons who committed certain carefully delineated relatively minor offenses.” Id. This statute “express[ed] a legislative determination” that it should have a “limited retroactive effect.” Id. It expressed this “determination” by stating that its amendatory effect would apply “if the felony was committed after July 1, 1985, and the person was sentenced before July 1, 1988, and said conviction is not yet final.” Id. at 256 (citing Ch. 124, sec. 14, § 18—1—105(1)(b)(VII), 1988 Colo. Sess. Laws 712).
¶ 79 But the defendant in Riley “was subject to sentencing in the aggravated range.” Id. at 259. And the effective date clause for the statute amending those sentences contained “on or after” language. Id. at 257. So the court applied the second rule to reject the defendant’s contention that he was entitled to the benefit of the statutoiy amendment to presumptive range sentences. The court added that “[ajdoption of the defendant’s argument would require this court to ignore the clear legislative determination that the ... amendments were intended in general to have prospective effect only.” Id.
IV. The Elephant in the Room
¶ 80 Thomas did not mention present-day sections 2-4-202 and 2-4-303, C.R.S. 2014, which were then on the books,
¶ 81 Section 2-4-202 was the same in 1974 as it is today. It stated that' “[a] statute is presumed to be prospective in its operation.”
¶ 82 Section 2-4-303 stated in 1974, as it does today, that
• “[t]he repeal, revision, amendment, or consolidation of any statute ... or section ...”;
• “shall not have the effect to release, extinguish, alter, modify, or change in whole or in part any penalty ... either civil or criminal”;
• “unless the repealing, revising, amending, or consolidating act so expressly provides” (emphasis added); and
• “such statute ... or section ... shall be treated and held as still remaining in force”;
• “for the purpose of sustaining any and all ... prosecutions, criminal as well as civil, for the enforcement of such penalty ... [or] for the purpose of sustaining any judgment ... or order which can or may be rendered, entered, or made in such ... prosecutions imposing, inflicting, or declaring such penalty....”
¶ 83 These two statutes did not appear in any of Thomas’s progeny until 1979. Noe v. Dolan, 197 Colo. 32, 589 P.2d 483 (1979), was a civil case. The Department of Revenue revoked the plaintiffs driving privileges under the implied consent law. The plaintiff, citing Thomas, asserted that he was entitled to the benefit of a statutory amendment to that law. The supreme court disagreed.
¶84 In reaching its conclusion, the supreme court distinguished criminal and civil cases. It held that Thomas did not apply to *1142civil cases; rather, section 2-4-303 applied. Id at 34-36, 589 P.2d at 485-86. And the application of section 2-4-303 to the plaintiffs assertion meant that the legislature’s amendment did not apply to him. Id
¶ 86 But the court added that section 2-4-303 did not apply to criminal cases. Instead, section 18—1—410(1)(f) applied. If “a criminal penalty is at issue, [the supreme court] has consistently adhered to the principle enunciated in [Thomas ] that a defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction.” Id at 36 n. 3, 589 P.2d at 486 n. 3.
¶ 86 If the discussion of Thomas in Noe was the supreme court’s holding—and I think that it is dicta—it would seem to close the door on any debate whether section 2-4-303 applies to criminal eases in which defendants seek the benefits of amendatory legislation. But, even so, the supreme court reopened the door, at least by a crack, almost ten years later in McCoy. It cited sections 2-4-202 and 2-4-303 as authority for the second interpretive rule, which was that “a defendant does not receive any ameliorative benefit when retroactive application ... is clearly not intended by its own terms.” McCoy, 764 P.2d at 1174. And, to make matters less clear, McCoy does not analyze or even cite Noe.
V. The Constitutional Amendment Wrinkle
¶ 87 But we are not dealing with a statute here; we are dealing with an initiative that amended Colorado’s Constitution. I have not found any Colorado Supreme Court case that directly addresses whether defendants are entitled to the benefits of constitutional amendments of sentences in criminal cases. (People v. Russell, 2014 COA 21M, ¶¶ 9-20, 396 P.3d 71 (cert. granted Feb. 23, 2014), of course, reaches such a result, but it was issued by a division of this court.)
¶ 88 But the supreme court cases that ask the question whether constitutional amendments should apply retroactively provide a uniform answer. We must presume that a constitutional amendment applies prospectively unless its terms make clear that it should be applied retroactively. Huber v. Colo. Mining Ass'n, 264 P.3d 884, 890 (Colo.2011); Jackson v. State, 966 P.2d 1046, 1052 (Colo.1998); In re Great Outdoors Colo. Trust Fund, 913 P.2d 533, 539 (Colo.1996); Bolt v. Arapahoe Cnty. Sch. Dist. No. Six, 898 P.2d 525, 533 (Colo.1995); People v. Elliott, 186 Colo. 65, 68, 525 P.2d 457, 458 (1974). And, “[w]hen courts construe a constitutional amendment that has been adopted through a ballot initiative, any intent of the proponents that is not adequately expressed in the language of the measure will not govern the court’s construction of the amendment.” Great Outdoors Colo. Trust Fund 913 P.2d at 540 (emphasis added).
¶ 89 These cases contain at least one example of what such clear language should look like. Bolt analyzed article X, section 20(4) of the Colorado Constitution, which is part of the Taxpayers Bill of Rights. That section required advance voter approval of various new or increased taxes “[smarting November 4, 1992.” But the Governor did not issue a proclamation declaring that the Taxpayers Bill of Rights, which had passed in the November 1992 general election, had been approved until January 1993. The November 1992 date nevertheless controlled because it was a specific statement of the voters’ intent that section 20(4)(a) should apply retroactively. Boll 898 P.2d at 533-34.
VI. My Analysis
¶ 90 Based on this extended survey of the history of this issue, I reach five conclusions.
¶ 91 First, we should not address defendant’s contention that section 16(3) wipes out her conviction and sentence for the drug petty offense of possession of less than two ounces of marijuana. See § 18—18— 406(5)(a)(I), C.R.S. 2014 (classifying the act of possessing less than two ounces of marijuana as a drug petty offense). Defendant did not file a motion in the trial court seeking relief under section 18-l-410(l)(f). Rather, she raised this argument for the first time in this appeal.
¶ 92 Applying Thornton and Race, I would therefore conclude that there is a “valid reason” to assume that defendant has asked us to apply Thomas in the context of an appeal *1143filed under section 18-1409. § 18—1—410(1)(f); see Race, 187 Colo. at 205, 529 P.2d at 630; Thornton, 187 Colo. at 203, 529 P.2d at 628; cf. Carter, 186 Colo. at 395, 527 P.2d at 877(“[T]he appellate review of sentences by this [c]ourt, before finality of judgment of conviction, as allowed by section 40-1-509, is a proper judicial function....”).
¶ 93 By its express terms, section 18-1-409 specifically limits appeals to felony sentences. People v. DeJesus, 184 Colo. 230, 233, 519 P.2d 944, 945 (1974); People v. Roberts, 668 P.2d 977, 979 (Colo.App.1983). Indeed, section 18-1-409(1) states that “[w]hen sentence is imposed upon any person following a conviction of any felony ... the person convicted shall have the right to one appellate review of the propriety of the sentence....” (Emphasis added.) The language of the statute makes clear to me that defendant cannot appeal her sentence for a petty offense under this statute.
¶ 94 Second,' and alternatively, I would not follow Russell because, for the reasons that I describe below, I respectfully disagree with its reasoning. See People v. Wolfe, 213 P.3d 1035, 1036 (Colo.App.2009) (one division of the court of appeals is not bound by the decision of another division).
¶ 95 Third, I think that the distinction between statutes and constitutional amendments is a meaningful one. For example, section 1-40-123, C.R.S. 2014, makes clear that initiatives approved by the voters “shall take effect from and after the date of the official declaration of the vote by proclamation of the governor, but not later than thirty days after the votes have been canvassed....” (Emphasis added.) And, as far as I can tell, the supreme court has never applied Thomas or Thomas-like reasoning to a constitutional amendment.
¶ 96 Elliott is intriguing in this regard because it was a criminal case. It discussed the issue whether Colorado’s Equal Rights Amendment applied retroactively to a criminal felony non-support case. The supreme court issued its opinion two weeks after Thomas, and it was written by one of the justices who dissented in that case. But the opinion does not mention Thomas, and the question before the court did not involve a potentially ameliorative change in the defendant’s sentence.
¶ 97 I nonetheless conclude that, in the absence of any supreme court case suggesting otherwise, I am compelled to apply Huber, Jackson, Great Outdoors Colo. Trust Fund, Bolt, and Elliott to this issue without a Thomas gloss. Doing so, I presume that section 16(3) only applies prospectively. I would then conclude that we should not apply section 16(3) retroactively because there is no language in either section 16(3) or section 16(9) that clearly expresses the voters’ desire that section 16(3) should apply retroactively.
¶ 98 Instead, the effective date clause in section 16(9) states that’“[ujnless otherwise provided by this section,” all of the amendment’s provisions “shall become effective upon official declaration of the vote” on the amendment “by proclamation of the Governor.” This means that, as far as this case is concerned, section 16(3) does not apply to defendant’s case because
• section 16(3) does not “provide” a different effective date than section 16(9);
• section 16(9) does not contain clear language indicating retroactive application, akin to the language, in Bolt;
• section 16(3) became effective on December 2012, when the Governor issued his proclamation;
• defendant committed the crimes in this case in October 2011; a jury convicted her in August 2012; and the court sentenced her in November 2012; and
• section 1-40-123 makes clear that the initiative only became effective “from and after” the date when the Governor issued his proclamation.
¶ 99 Fourth, even if I thought it appropriate to apply a Thomas gloss to a constitutional amendment, I nevertheless believe that our supreme court’s jurisprudence has evolved in the years since it decided Thomas. Starting with cases such as Macias, the court has recognized two rules, rather than just the one described in Thomas. And the second rule makes clear that “a defendant does not receive any ameliorative benefit when retroactive application ... is clearly not intended by its own terms,” McCoy, 764 P.2d *1144at 1174; or, to put it somewhat differently, that, since Thomas, the supreme court has “emphasized that a defendant is not entitled to the ameliorative effects of amendatory legislation if the General Assembly has not clearly indicated its intent to require such retroactive application,” Riley, 828 P.2d at 258 (emphasis added).
¶ 100 Applying Macias, McCoy, and Riley, I would follow the supreme court’s second rule in this case. (I do not think that either Montgomery, 737 P.2d at 414 n. 4, or Emig, 676 P.2d at 1158 n. 7, suggests a different result. Both those decisions simply recognized, in dicta, that there had been either a stipulation or a trial court order based on Thomas. And the supreme court did not have any reason to address the continued viability of Thomas’s single rule approach, or the propriety of the second rule, in either opinion.)
¶ 101 I would therefore conclude that the legal landscape has changed significantly since the 1970s, when the single rule in Thomas circumscribed the entire analysis. And I conclude that defendant is not entitled to the ameliorative effects of section 16(3), because the effective date clause, section 16(9), does not clearly, by its own terms, state the intention to apply any of section 16 retroactively, let alone section 16(3). See Riley, 828 P.2d at 258; McCoy, 764 P.2d at 1174.
¶ 102 I readily concede that the effective date clause in section 16(9) does not contain “on or after” language. But, at least to me, its language does not even remotely state in a clear and affirmative way, let alone suggest, that section 16(3) applies retroactively. It certainly does not contain the type of clear statement that the supreme court analyzed in Riley. See Riley, 828 P.2d at 256. And, although “on or after” clauses may have triggered the creation of the second rule, the supreme court has never stated that the second rule can only be applied when effective date clauses contain “on or after” language.
¶ 103 Fifth, to address the elephant in the room, if McCoy means that section 2-4-303 applies to this case, then I respectfully submit that my position becomes nearly airtight. Combining the presumption of prospective effect found in section 2-4-202 with the definitive language in section 2-4-303 that requires “express! ]” language to “release, extinguish, alter, modify, or change ... any [criminal] penalty,” it is clear to me that section 16(9) does not contain such language.
¶ 104 I understand that Noe is still good law, but so is McCoy. And McCoy has the virtue of being a criminal ease, like this one, while the statement in Noe, a civil case, appears to me to be dicta.