dissenting.
[¶ 25] The majority concludes that, although the prosecution failed to properly allege the prior offenses as required by N.D.C.C. § 19-03.1-23(5), any error was harmless under N.D.R.Crim.P. 52(a). Because harmless error analysis is inappropriate in this case, I respectfully dissent.
I
[¶ 26] Initially, I note my agreement with the majority’s conclusion that N.D.C.C. § 19-03.1-23(5) clearly and unambiguously requires the prosecution to allege specific prior offenses in the information.
[¶ 27] Interpretation of a statute is a question of law which is fully reviewable upon appeal. State v. Schlotman, 1998 ND 39, ¶ 10, 575 N.W.2d 208. Our primary purpose is to ascertain the intent of the legislature, and legislative intent must be first sought from the language of the statute itself. State v. Ulmer, 1999 ND 245, ¶ 6, 603 N.W.2d 865; Schlotman, at ¶ 10. Words used in a statute should be construed in their plain, ordinary, and commonly understood sense. N.D.C.C. § 1-02-02; Ulmer, at ¶ 6. Criminal statutes must be strictly construed against the government and in favor of the accused. State v. Rambousek, 479 N.W.2d 832, 834 (N.D.1992).
[¶ 28] Section 19-03.1-23(5), N.D.C.C., requires that the prior offenses “must be alleged” in the charging instrument. The word “must” as ordinarily used indicates a mandatory duty, and is not merely directory. Federal Land Bank of St. Paul v. Waltz, 423 N.W.2d 799, 802 (N.D.1988); see also North Dakota Legislative Drafting Manual 94 (1999). The prosecution concedes it is required to allege the prior offenses, but argues a mere reference to the statute and an indication a mandatory minimum sentence will be sought are sufficient to satisfy the statutory requirement.
[¶ 29] The primary purpose of the complaint or information is to fairly inform the accused of the charges against him to enable him to prepare for trial. City of Fargo v. Schwagel, 544 N.W.2d 873, 874 (N.D.1996); City of Grand Forks v. Mata, 517 N.W.2d 626, 628 (N.D.1994); State v. Gahner, 413 N.W.2d 359, 361 (N.D.1987). An “allegation,” in the context of a legal *483pleading, is defined as “a party’s formal statement of a factual matter as being true or provable, without its having yet been proved.” Black’s Law Dictionary 74 (7th ed.1999).
[¶ 30] The legislature, in directing that the prior offenses “must be alleged” in the information, clearly intended to require the State to specifically identify the prior offenses it is relying upon to trigger the mandatary sentencing provisions. If a conclusory reference to the statute in the penalty section of the information was deemed sufficient, the defendant would be left to speculate about which offenses the State intended to rely upon to meet its burden of proving the prior convictions. In order to properly prepare to meet the State’s allegations, the defendant must be informed of the precise instances of conduct the State is raising. The legislature has mandated that these allegations- be included in the charging instrument. I therefore agree with the majority that the information failed to'properly allege the specific prior offenses as required under N.D.C.C. § 19-03.1-23(5).
II
[¶ 31] The transcript of the sentencing hearing suggests that, as part of an informal plea agreement, the State would recommend the twenty-year mandatory minimum but it was agreed Mora could argue for a lesser sentence at the time of sentencing. The error in this case was a sentencing error, not a pleading error. The information was not defective: it properly pleaded all of the requisite elements of the class A felony of delivery of a controlled substance. The information clearly would not have been subject to a motion to dismiss under N.D.R.Crim.P. 12(b). The error in this case did not occur until sentencing, after the guilty plea had been entered, when the trial court actually imposed the mandatory minimum sentence in spite of the prosecution’s failure to comply with N.D.C.C. § 19-03.1-23(5). It was not until sentencing that Mora could challenge imposition of the mandatory minimum.
[¶ 32] The result urged by the majority in practicality shifts the burden to the defendant to raise and challenge such issues before entry of a plea. The burden, however, rests upon the prosecution to ensure proper compliance with N.D.C.C. § 19-03.1-23(5) if it intends to rely upon a mandatory minimum at the time of sentencing. It should not be met by a defendant’s exercise of his right to have a written request for his previous criminal record under N.D.R.Crim.P. 16, (a)(1)(B).
Ill
[¶ 33] The majority concludes that, even if the prosecution’s failure to allege the prior offenses was error, Mora suffered no prejudice and the error was harmless under N.D.R.Crim.P. 52(a) because Mora had actual knowledge of the prior offenses.
[¶ 34] Our Rule 52(a) is identical to Fed. R.Crim.P. 52(a), and we have looked to authorities construing the federal rule to aid in interpretation of our rule. See City of Fargo v. Erickson, 1999 ND 145, ¶ 13, 598 N.W.2d 787; City of Mandan v. Baer, 1998 ND 101, ¶ 21 n. 5, 578 N.W.2d 559. Interestingly, the majority does not cite any federal cases addressing application of the harmless error rule in the context of failure to comply with the federal statute requiring the prosecution to plead prior offenses in an information when an enhanced sentence is sought. See 21 U.S.C. § 851(a). The majority’s failure to cite such cases is understandable, inasmuch as the federal courts. have consistently held that the failure to plead the prior offenses as required by 21 U.S.C.. § 851(a) is not subject to harmless error - analysis, even when the defendant has actual notice of the prior offenses and of the prosecution’s intent to seek an enhanced sentence. See, e.g., United States v. Kennedy, 133 F.3d 53, 59 (D.C.Cir.), cert. denied, 525 U.S. 911, 119 S.Ct. 255, 142 L.Ed.2d 210 (1998); United States v. Romero-Carrion, 54 F.3d 15, 18 (1st Cir.1995); Kelly v. United *484States, 29 F.3d 1107, 1111 (7th Cir.1994); United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir.1990); United States v. Olson, 716 F.2d 850, 852-53 (11th Cir.1983).
[¶ 35] The rationale for the refusal to apply harmless error analysis was explained in Olson, 716 F.2d at 853:
An enhanced sentence is a special remedy prescribed by the Congress; prosecutorial discretion is vested in the executive branch of the government, and the district court has no authority to exercise it or pretermit it. As we have pointed out, Congress advisedly vested this discretion in the prosecutor. Unless and until prosecutorial discretion is invoked and the government files and serves an information as required by Sec. 851, the district court has no power to act with respect to an enhanced sentence; it can no more enhance the sentence than it could impose imprisonment under a statute that only prescribes a fine. Harmless error cannot give the district court authority that it does not possess.
In accordance with this reasoning, the court in Weaver, 905 F.2d at 1481, explained that strict compliance with 21 U.S.C. § 851 is required:
This circuit has insisted upon strict compliance with the mandatary language of the procedural requirements of section 851(a) and (b). United States v. Noland, 495 F.2d 529, 533 (5th Cir.), cert. denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974); United States v. Cevallos, 538 F.2d 1122, 1126-27 (5th Cir.1976). This is particularly true with respect to the timing of the government’s filing with the court and service on the defendant of an information signifying the government’s intent to rely on a prior drug conviction. Noland, 495 F.2d at 533. Even when the defendant is not surprised by the enhanced sentence, was aware from the outset that his previous conviction could lead to an enhanced sentence, never challenged the validity of the prior conviction, and admitted it at the sentencing hearing, the statute prohibits an enhanced sentence unless the government first seeks it by properly filing an information prior to trial. Id. “Provision for enhanced sentencing is a legislative decision, and the procedure the legislature prescribes to effectuate its purpose must be followed.” Id. Significantly, “[t]he doctrine of harmless error does not apply” with respect to failures to follow the statutory scheme of § 851. United States v. Olson, 716 F.2d 850, 852 (11th Cir.1983).
[¶ 36] I agree with the rationale expressed by the federal courts. Our legislature has enacted a mandatory minimum sentencing provision which places discretion in the State to seek the mandatory minimum sentence by properly pleading prior offenses in the information. Absent strict compliance with the clear and unambiguous requirements of that statute, the trial court is without authority to impose a mandatory minimum sentence, and harmless error analysis cannot confer that authority where it does not otherwise exist. Accordingly, I would refuse to apply harmless error under N.D.R.Crim.P. 52(a) in this case.
[¶ 37] The majority suggests that the analysis of these federal decisions, interpreting the identical federal rule in cases where the prosecution failed to properly plead prior offenses as required by statute, do not supersede our harmless error jurisprudence. The cases cited by the majority as examples of our harmless error jurisprudence do not, however, support reliance upon harmless error to reach the result urged by the majority.
[¶ 38] Two of the cases cited by the majority, State v. Gielen, 54 N.D. 768, 210 N.W. 971 (1926), and State v. Bloomdale, 21 N.D. 77, 128 N.W. 682 (1910), were decided decades before the North Dakota Rules of Criminal Procedure, and N.D.R.Crim.P. 52(a), were first adopted in 1973. In Bloomdale, the defendant was charged with a second offense of maintaining a common nuisance, and the informa*485tion specifically charged that he had been convicted of a prior offense under chapter 63 of the penal code on December 14,1901, in district court in Sargent County. Bloomdale, 128 N.W. at 683. The defendant argued that was insufficient to identify the exact prior offense. This Court concluded the prior offense had been sufficiently pleaded. Id. at 684. There is no discussion of harmless error.
[¶ 39] In Gielen, the basis of this Court’s holding was that the defendant had not challenged at trial the State’s failure to identify the prior conviction in the information. Gielen, 210 N.W. at 975. The Court specifically noted: “nor do we express any opinion as to whether the allegations, as to the former conviction, would have been sufficient as against a proper and timely objection in the trial court.” Id. Gielen therefore does not suggest that failure to sufficiently plead prior offenses is harmless error if the defendant raises the issue at trial, as Mora did in this case.
[¶ 40] The third case cited by the majority, State v. Anderson, 303 N.W.2d 98 (N.D.1981), involved revocation of probation. The trial court found there had been violations of the specific terms of probation, and further stated the evidence showed Anderson’s conduct may have constituted felony child abuse and criminal' attempt or conspiracy. Anderson argued lack of due process notice because the prosecutor’s affidavit in support of revocation did not mention specific criminal violations. This Court held that any lack of notice was harmless because, even excluding consideration of child abuse, conspiracy, or attempt, the trial court had also found other separate probation violations on other grounds. Id. at 101. In this case, there are no “other grounds” which render the State’s failure to plead the prior offenses as required by the statute harmless, and Anderson is wholly inapposite.
[¶ 41] There is nothing in the federal cases which supersedes or conflicts with our prior harmless error jurisprudence, and I would therefore refuse to apply harmless error in this case.
IV
[¶ 42] Because the prosecution failed to comply with the clear requirements of N.D.C.C. § 19-03.1-23(5), I would vacate the sentence and remand for further sentencing proceedings without application of the twenty-year mandatory minimum sentence under N.D.C.C. § 19-03.1-23(l)(a)(3). See Neary v. United States, 998 F.2d 563, 565-66 (8th Cir.1993).
[¶ 43] Mary Muehlen Maring