ALLEN, P.J.

May a trial court, acting under § 1 of Chapter 11 of the Code of Criminal Procedure, MCLA 771.1; MSA 28.1131, dismiss a felony case, after conviction on a plea of nolo contendere, without a motion for nolle prosequi by the prosecuting attorney? This question of first impression arises on the following facts:

In June 1973, the defendant, a licensed practical nurse employed at the Ypsilanti State Hospital, was charged with larceny in a building, MCLA 750.360; MSA 28.592, by taking some 31 valium tablets. Upon arraignment, the defendant stood mute and a plea of not guilty was entered for her. On April 22, 1974, the case was called for trial, at which time defendant tendered a plea of nolo contendere. No plea bargain was involved. At sentencing May 16, 1974, defendant's sentence was delayed for one year. On the deferred sentence date one year later the trial judge dismissed the case, citing as grounds therefor the fact that defendant had successfully completed the period of delay and the interest of justice has been served. Defendant, age 49 at the time of the offense charged, had no prior criminal record of any kind whatsoever. An order granting the dismissal but "noting the objections of the prosecuting attorney thereto" was entered by the trial court July 11, 1975. From this order the people, under authority of Jackson County Prosecutor v Court of Appeals, 394 Mich. 527; 232 N.W.2d 172 (1975), have appealed of right.

The law governing dismissal over prosecutorial objection is extensively set forth in People v Stewart, 52 Mich. App. 477; 217 N.W.2d 894 (1974). There the trial judge, pursuant to a policy of dismissing heroin possession charges if the amount in possession was less than three grains, dismissed the pending proceedings. To this action the prosecutor objected claiming, as is claimed in the instant appeal, that dismissal over prosecutorial objection on "nonlegal" grounds violated the doctrine of the separation of powers. Const 1963, art 3, § 2. Our Court agreed with the prosecutor, holding that in Michigan as well as in the majority of states a trial judge may dismiss charges, sans prosecutorial consent, only if there is (1) insufficient evidence, or (2) a permissive statute.

"However, the weight of authority holds that dismissal is in the prosecutor's sole discretion (subject to the exception hereinafter stated). Dismissal over his objection, absent a permissive statute, is precluded. People v McLeod, 25 Wend (NY) 483; 1 Hill (NY) 377; 37 Am Dec 328 (1841); People v Bennett, 49 N.Y. 137 (1872); People v Beckwith, 2 N.Y. Crim Rep 29 (1884); Commonwealth v Hart, 149 Mass. 7; 20 N.E. 310 (1889); Commonwealth v Cundiff, 149 Ky. 37; 147 S.W. 767 (1912). Only where the evidence is insufficient has the court the power to dismiss over prosecutorial objection. Com v Cundiff, supra; cf. People v Gaige, 23 Mich. 93 (1871); State ex rel Ronan v Stevens, 93 Ariz. 375; 381 P.2d 100 (1963); San Miguel v McCarthy, 8 Ariz. App. 323; 466 P.2d 22 (1968). Even, as in Michigan, when the judge may veto the prosecutor's decision to nolle prosequi, he lacks the power to dismiss on his own motion over prosecutorial objection." 52 Mich. App. 477, 482-483.

The question remaining for resolution is whether the statute confers upon the court permissive authority to dismiss in the absence of the prosecutor's consent. Defendant claims that the answer to this question should be "yes" for the reason that the phrase "such other leniency as may be compatible with the ends of justice and the rehabilitation of the defendant" is, by implication, broad enough to allow dismissal. Respectfully, we disagree. We cannot equate the word "leniency" as meaning total forgiveness. To us, "leniency" presupposes some penalty, however slight, but allows the trial court to make the penalty token only. If the Legislature had intended anything more we believe that the Legislature would have specifically said so. The power to dismiss was clearly set forth in § 47 of the Controlled Substance Act, in § 1 of the statute setting aside convictions committed prior to a defendant's 21st birthday and in § 14 of the Holmes Youthful Trainee Act. In each of these statutes the power to dismiss or expunge is specifically spelled out. The deferred sentencing statute under which the trial court acted in the instant case was first enacted in 1937, but the last three sentences thereof (including the phrase "such other leniency") first became part of the law in 1961 — a date relatively close to the date of enactment of the three specific statutes cited. Given the fact that within an 11-year time period the Legislature has, on three occasions, specifically spelled out the power of the court to dismiss, leads us to conclude that on the fourth occasion, had the Legislature intended to overrule the doctrine expressed in Stewart, supra, it would have done so in precise language rather than by implication. Accordingly, we opine that, despite the best of intentions, the trial judge exceeded permissible bounds in dismissing this cause over objections by the prosecuting attorney.

Our conclusion would, under normal circumstances, lead us to vacate the order of dismissal, reinstate the conviction, and remand for imposition of sentence. We decline to do so. The order of the trial court, though technically wrong, is equitably right. Except for the relatively minor offense charged herein, defendant's record is impeccable. We see no useful purpose and, in fact, perceive some harm in insisting that a felony charge appear on defendant's civil service record. Having won the "war" and prevailed on principle, we suggest the prosecutor, upon remand, reconsider and move for nolle prosequi or otherwise consent to dismissal as first ordered by the trial judge. Compassion is still an element of the law. The quality of mercy should not be strained on the facts before us.

The order of dismissal is vacated and the cause remanded for action as suggested by this opinion.