(dissenting).
Dennis Bluhm was charged with conspiracy to sell cocaine in violation of Minn.Stat. § 152.02, subd. 3(l)(d); § 152.09, subd. 1(1); § 152.15, subd. 1(2); § 152.096, subd. 1. A violation of Minn.Stat. § 152.15, subd. 1(2) carries a maximum sentence of 15 years and/or a $40,000 fine. The specific offense description on Bluhm’s complaint states:
Dennis H. Bluhm did, on or about September 4-5, 1988, in Albert Lea, Minnesota, conspire with Lawrence R. Peterson in the sale of a one ounce quantity of powder containing cocaine, for the price of $1,300.
Minn.Stat. § 152.15, subd. l(l)(ii) provides that offenders who sell or distribute a total of ten grams or more of a controlled substance are subject to a penalty of not more than 20 years and/or $60,000. Because there are 28 grams in an ounce, Bluhm’s described offense carried a greater penalty than the complaint’s referenced statute.
I do not agree with the majority’s conclusion that the trial court abused its discretion by permitting the prosecution to amend the complaint. The assistant attorney general, who had not been the charging attorney, moved to amend after observing that the statutory reference did not conform to the description of the offense. Although changing the degree of an offense may well result in “a violation of substantive rights by charging a different offense,” I do not believe that occurred here. See Gerdes v. State, 319 N.W.2d 710, 712 (Minn.1982).
In any event, the motion to amend was made before the impaneling of the jury. Rule 17.05 restrictions do not apply if a motion to amend is made before trial commences. State v. Smith, 313 N.W.2d 429, 430 (Minn.1981). If the primary purpose of Rule 17.05 is to preserve the defense’s due *261process right to timely notice, the court’s deferring its ruling until after the jury was impaneled does not change it from a pretrial to a preverdict motion. See State v. Alexander, 290 N.W.2d 745, 748 (Minn.1980).
Whether the trial court committed reversible error by failing to instruct the jury that it must find that Bluhm sold ten grams or more of cocaine is more complex. A jury interrogatory on this question is proper. See CRIM. JIG 20.19. The failure to properly instruct was twice mentioned in Bluhm’s brief, but it was not raised as an issue in either brief and consequently the competing arguments are not well developed. It is unclear whether the trial court’s offer to allow the defense to dispute the amount at sentencing was intended to ameliorate any effects of the denial of a continuance or whether the court believed that it was solely a sentencing issue.
If the omission of the jury instruction is subject to a harmless error analysis, it is significant to note that the evidence of amount is undisputed and there was no request for a jury instruction on the amount. The defense presented at trial did not relate to amount and centered on whether Bluhm was the individual who made the sale and whether the sale was cocaine or marijuana. The verdicts contained a specific statutory reference to Minn.Stat. § 152.15, subd. l(l)(ii). Under these circumstances I believe the trial court should be affirmed and the conviction should stand. See State v. Glidden, 455 N.W.2d 744 (Minn.1990) (court of appeals erred in raising issue on its own and erred in concluding that trial court’s failure to give an unrequested instruction was plain error).
Finally, the majority’s modification remedy short circuits the procedure. If there is error, the appropriate resolution is to vacate the convictions and remand for a new trial.