BRICKLEY, J. (dissenting).

In these cases, consolidated for purposes of appeal, we are asked to determine whether the Court of Appeals erred in ordering the resentencing of defendant Schultz under MCL 333.7403; MSA 14.15(7403), as amended by 1988 PA 47, and the resentencing of defendant Sand under MCL 333.7401; MSA 14.15(7401), as amended by 1987 PA 275.

In both People v Schultz and People v Sand, we would hold that the Court of Appeals erred in ordering resentencing. Thus, we would reverse the Court of Appeals decisions and reinstate the decisions of the respective trial courts.

I. FACTS AND PROCEEDINGS

A. PEOPLE v SCHULTZ

On November 13, 1986, defendant David M. Schultz transported ten ounces of cocaine to the scene of the delivery where it was sold by another individual to an undercover officer for $10,000. He was initially charged with manufacture, delivery, or possession with the intent to manufacture or deliver more than 225 grams but less than 650 grams of a mixture containing cocaine pursuant to MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii). On April 28, 1987, he was convicted by a jury in the Oakland Circuit Court of possession of a mixture containing cocaine in an amount greater than 225 grams but less than 650 grams pursuant to MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii).

Schultz was sentenced to a term of twenty to thirty years imprisonment on May 18, 1987, as required by MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii). On June 5, 1987, he appealed the conviction to the Michigan Court of Appeals. While that appeal was pending, the Legislature amended § 7403(2)(a)(ii). Among other changes, the amendatory act reduced the mandatory minimum sentence from twenty to ten years, and added a subsection giving the sentencing court discretion to depart from the mandatory minimum "if the court finds on the record that there are substantial and compelling reasons to do so."

On November 7, 1988, the Michigan Court of Appeals affirmed the defendant's conviction. 172 Mich. App. 674; 432 N.W.2d 742 (1988). However, the Court remanded the case to the trial court for resentencing under the 1988 amendment of MCL 333.7403; MSA 14.15(7403). Schultz had challenged his sentence as being cruel and unusual punishment but did not argue that the new law should be applied retroactively. The Court of Appeals, however, concluded that the revision of MCL 333.7403; MSA 14.15(7403), reducing the mandatory minimum sentence and allowing for departure from those mandatory minimums for substantial and compelling reasons, evidenced a legislative intent "to make the punishment more proportionate to the crime and the criminal and [was] a tacit admission [by the Legislature] that such was previously not the case." Schultz, supra at 687.

On April 11, 1989, this Court granted the people's application for leave to appeal, limited to the issue whether the Court of Appeals erred by ordering resentencing under the 1988 amendment of MCL 333.7403; MSA 14.15(7403). 432 Mich. 892 (1989).

On June 29, 1989, the Legislature again amended the penalty provisions for the instant offense, restoring the initial mandatory minimum sentence of twenty years. 1989 PA 143, effective September 28, 1989.

B. PEOPLE v SAND

On February 4, 1988, defendant Jeffrey Francis Sand pled guilty of conspiracy to deliver more than 50 grams but less than 225 grams of a mixture containing cocaine pursuant to MCL 750.157a; MSA 28.354(1) and MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). The factual basis of the plea was defendant's admission that on February 3, 1986, he entered into an agreement to go to Florida and purchase cocaine for delivery to another individual who was an undercover narcotics agent. Sand originally was charged with conspiracy to deliver over 225 grams but less than 650 grams of a mixture containing cocaine pursuant to MCL 750.157a; MSA 28.354(1) and MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii). However, because of his cooperation with the police in another drug investigation, a plea agreement was reached whereby defendant was allowed to plead guilty of MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii) which mandated a lower mandatory minimum prison term and also offered the optional sentence of lifetime probation. On May 2, 1988, Sand was sentenced to a term often to twenty years in prison.

On June 21, 1988, this defendant appealed his sentence, claiming for the first time that he should have been sentenced under the 1987 amendment of MCL 333.7401; MSA 14.15(7401), which eliminated the lifetime probation option, reduced the mandatory minimum prison term from ten years to five years, and also gave the sentencing court discretion to depart from the mandatory minimum sentence when there are substantial and compelling reasons to do so. The Court of Appeals, on May 22, 1989, remanded the case for resentencing under the penalty provisions in effect at the date of sentencing. On September 27, 1989, this Court granted the people's application for leave to appeal, consolidating it with the appeal in People v Schultz, 433 Mich. 879 (1989). On June 29, 1989, the Legislature once again amended the penalty provisions for the instant offense, restoring the initial mandatory minimum sentence of ten years, but not the lifetime probation option. 1989 PA 143, effective September 28, 1989.

II. STATUTORY RULES OF CONSTRUCTION

We begin by noting that Michigan adheres to the well-established rule of construction that statutes are to apply prospectively unless it is clear that the Legislature intended otherwise. The same is true even in the absence of constitutional obstacles to retroactive operation. This rule applies equally as well to criminal statutes and "affords a degree of certainty to the administration of criminal justice. . . ." Thus, our inquiry focuses on whether the Legislature intended the amendments of MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403) to operate retroactively.

III. DISCUSSION

The amendatory acts at issue here contain no expression of retroactive or prospective operation. However, several factors establish that the Legislature intended prospective operation only.

A

First, we note that MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403) are penalty provisions set out under the controlled substance act which is included in the Public Health Code, 1978 PA 368. Section 25205 of that act explicitly provides that Michigan's general saving statute "section 8.4a of the Michigan Compiled Laws, is applicable to this code." MCL 333.25205; MSA 14.15(25205). Thus, it is evident that the Legislature intended that MCL 8.4a; MSA 2.214 be read along with any amendments to the penalty provisions of the controlled substance act unless it expressly provided otherwise in those amendments.

MCL 8.4a; MSA 2.214 was adopted by the Legislature to avoid application of the common-law rule set out in People v Lowell, 250 Mich. 349, 353; 230 N.W. 202 (1930), that absent a saving clause or general saving statute, the repeal of a penal statute would operate "to defeat all pending prosecutions under the repealed statute." That general saving clause consistently has been construed to mean that the penalty provisions of an original act will apply to all offenses committed prior to the effective date of an amendatory act reducing those penalties.

Thus, in a series of cases, the Court of Appeals considered a situation similar to that presented here, i.e., the appropriateness of sentencing a defendant charged with breaking and entering in the nighttime after an amendment of MCL 750.110; MSA 28.305, eliminated the distinction between daytime and nighttime breaking and entering, and, in effect, reduced the maximum penalty to ten years. In People v Poole, 7 Mich. App. 237, 243; 151 N.W.2d 365 (1967), the Court stated that "the sentence or punishment imposed is that prescribed by the statute in force at the time of the commission of a crime," and "as a general rule, amendments to criminal statutes with respect to sentence or punishment are not retroactive."

Next, in People v McDonald, 13 Mich. App. 226, 229; 163 N.W.2d 796 (1968), lv den 381 Mich. 795 (1968), the Court of Appeals addressed the defendant's claim that prosecutions for breaking and entering in the nighttime committed before the "`repeal' were barred by the legislative action." The McDonald Court relied on the general saving statute and held that because the amended act "does not expressly relinquish any penalty incurred under the nighttime provision . . . [it] does not defeat prosecution of those who, before the 1964 act's effectiveness, violated the former provision by breaking and entering in the nighttime." Id. at 230.

The following year, in People v Dickerson, 17 Mich. App. 201; 169 N.W.2d 336 (1969), the Court of Appeals addressed more specifically the issue whether the penalty provisions of the amended act were applicable to offenses committed prior to its effective date. The defendant noted that under the amended act the fifteen-year maximum penalty could be imposed only for breaking and entering an occupied dwelling house. Because his guilty plea and conviction were for breaking and entering an unoccupied building, the defendant argued his sentence of eighteen months to fifteen years was erroneous and should be reduced. The Dickerson Court dismissed the defendant's argument as meritless, followed its McDonald decision, and held that prosecutions for offenses of breaking and entering committed before the effective date of the amendatory act were to be governed by the terms of the earlier statute. Dickerson, supra at 203.

More recently, in People v Gravedoni, 172 Mich. App. 195; 431 N.W.2d 221 (1988), the Court of Appeals evaluated a situation where, after the defendant had committed an offense, an amendatory act that had the consequence of reducing punishment took effect. Defendant Gravedoni was convicted by a jury of violating a statute prohibiting fraudulent use of electric service. MCL 750.282; MSA 28.493. The Court of Appeals relied on MCL 8.4a; MSA 2.214 and rejected the defendant's claim that his conviction was invalid because an amendment of that statute increased the dollar amount of services that the prosecution must prove in order to gain a felony conviction. It held that the general saving statute "unambiguously provides that unless there is a specific provision voiding a former law, any actions pending on the effective date of a new law are saved." Id. at 197. Thus, the defendant's prosecution, conviction, and sentence under the provisions of the former act were proper.

Finally, we note that several panels of the Michigan Court of Appeals have considered the effect of MCL 8.4a; MSA 2.214 on the amendments at issue in Schultz and Sand — something the Schultz and Sand Courts failed to do. They concluded that the general saving statute unambiguously validates a defendant's sentence under the statute in effect when he committed the offense. Therefore, these amendments are not to operate retroactively.

We agree that, by virtue of MCL 8.4a; MSA 2.214, an amendatory act that is silent with respect to whether it should operate prospectively or retrospectively should not be given retroactive effect. MCL 8.4a; MSA 2.214 unambiguously provides:

The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty . . . incurred under such statute . . . unless the repealing act shall so expressly provide, and such statute . . . shall be treated as still remaining in force for the purpose of . . . sustaining any proper . . . prosecution for the enforcement of such penalty . . . . [Emphasis added.]

Thus, the penalty provisions of the statutes in effect on the dates defendants Schultz and Sand committed their offenses should govern their sentences.

B

Michigan's general saving clause and its judicial interpretations are in accord with federal law. The federal general saving statute, 1 U.S.C. § 109, is substantially similar to Michigan's statute and provides in relevant part:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

In Warden v Marrero, 417 U.S. 653, 660-661; 94 S Ct 2532; 41 L Ed 2d 383 (1974), reh den 419 U.S. 1014 (1974), the United States Supreme Court discussed the history and correct interpretation of § 109. That Court's detailed history of § 109's enactment reveals a history similar to Michigan's adoption of MCL 8.4a; MSA 2.214. Relevant to our discussion here, the Court noted that "[c]ommonlaw abatements resulted not only from unequivocal statutory repeals, but also from repeals and reenactments with different penalties, whether the re-enacted legislation increased or decreased the penalties." Id. at 660, citing Bradley v United States, 410 U.S. 605, 607-608; 93 S Ct 1151; 35 L Ed 2d 528 (1973). Thus, § 109 was adopted to avoid the abatement or preclusion of all prosecutions that had not proceeded to final judgment. Moreover, the United States Supreme Court pointed out that "the saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense." Marrero at 661 (citations omitted).

Marrero concerned the question whether prohibition of an offender's eligibility for parole, as set out in the statute in effect on the date defendant Marrero committed the underlying offense, is a "penalty" saved from release or extinguishment by § 109 in light of a recent amendatory act making parole an option for certain drug offenders. After concluding that it was such a penalty, the Court held that § 109 saved from repeal the bar of parole eligibility under the former statute in effect at the time defendant committed his offense. Id. at 664.

A review of current decisions in other jurisdictions also reveals a similar conclusion that the statute in effect at the date of the offense controls the penalty provision to be applied even where the Legislature subsequently amends the statute and reduces penalties.

C

It is an accepted rule of statutory construction that the Legislature is presumed to act with knowledge of existing law. Therefore, this Court can presume that the Legislature was aware of the construction of MCL 8.4a; MSA 2.214 against retroactive application of criminal penalties when it amended the controlled substance act by 1987 PA 275 and 1988 PA 47.

Our conclusion that the Legislature did not intend these amendatory acts to operate retrospectively is further supported by the fact that the Legislature has in the past explicitly expressed its desire that certain portions of an amendatory act are to have retroactive effect. For example, under an earlier version of the controlled substance act, 1971 PA 196, § 61, the Legislature created two exceptions to the general rule against retroactive application of statutes. "First, defendants not sentenced by the effective date of the statute [could] receive the benefit of the decreased sentences contained therein. Second, defendants sentenced prior to the effective date of the statute" were to receive the benefit of parole board review of their sentences and further that that board's recommendations were to be sent to the Governor with respect to commutation of certain sentences. Thus, it is evident that when the Legislature intends to make an amendatory act reducing penalties retroactive in effect it does so expressly.

D

Defendants Schultz and Sand urge this Court to abandon the above-stated, well-established rule and adopt the rule followed in a number of other jurisdictions. That rule states, despite the presence of a general saving statute: where an amendatory act reduces the punishment to be imposed for an offense committed before its effective date, but before final judgment, the defendant may be punished under the new law. This contrary judicially adopted rule is premised on "inferred" legislative intent and the presumption that when the Legislature amends a statute by lessening the punishment, "it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper [and] should apply to every case to which it constitutionally could apply." In re Estrada, 63 Cal.2d 740, 745; 48 Cal.Rptr. 172; 408 P.2d 948 (1965). This judge-made rule is further premised upon the contention that nothing is gained but vengeance when the courts impose the more severe penalty. Id.

Despite this view, our consideration of the history of MCL 8.4a; MSA 2.214 gives us no basis for inferring such an intention on the part of the Legislature. It is our view that our general saving statute is to be construed in the same manner as the federal general saving statute. MCL 8.4a; MSA 2.214 is evidence of the legislative intent to preserve both the prosecution and punishment provisions of the statute in effect at the time an offense was committed.

The Court of Appeals in Schultz raised an argument similar to that adopted in Estrada when it erroneously concluded that because the Legislature revised the controlled substance act by reducing the mandatory minimum penalties and gave the sentencing court discretion to depart from the mandatory minimums for substantial and compelling reasons, it was the Legislature's intent "to make the punishment more proportionate to the crime and the criminal and [was] a tacit admission that such was previously not the case." Schultz, supra at 687. Defendant Sand also raises the argument that the Legislature adopted the amendments to correct the harshness and severity of the prior act's penalty provisions.

In fact, a review of the legislative history of the amendatory acts at issue here reveals the opposite. Both 1987 PA 275 and 1988 PA 47 were enacted out of a concern that the penalties for controlled substance offenses be strengthened. Provisions were added mandating prison terms for offenses involving even small quantities of illegal drugs so as to preclude drug dealers from avoiding imprisonment by selling only small quantities upon initial contact with a buyer who later turned out to be an undercover narcotics officer. The amendments also removed the option of lifetime probation for larger quantities. Lastly, it addressed the concern of some that the mandatory minimum terms were too rigid by allowing for a departure by the sentencing court if it finds "on the record that there were substantial and compelling reasons to do so." Senate Analysis, SB 598, 600, 603, 610, Third Analysis, August 29, 1988, p 1.

In addition, a little over one year after the effective date of 1987 PA 275 and 1988 PA 47, the Legislature enacted 1989 PA 143, effective September 28, 1989, which once again amended the penalty provisions of the controlled substance act, reinstating the original mandatory minimum prison terms for MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403).

Thus, a review of the legislative history of MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403) does not reveal a tacit admission by the Legislature that the mandatory minimum terms in effect when the underlying offenses in Schultz and Sand were committed were disproportionate to the offenses. In light of the purpose and history of the relevant amendatory acts, and in the absence of any expression to the contrary, we find that the Legislature intended, by virtue of the general saving statute, that the statute in effect at the time an offense is committed is to govern the issue of sentencing. It is a legislative prerogative to prescribe sentences, and absent constitutional defects, the courts must carry out the legislative mandate.

Finally, the Estrada rule is a judge-created rule of construction which results in a lowered penalty in every case unless the Legislature expressly provides otherwise. Such an analysis is squarely prohibited by MCL 8.4a; MSA 2.214. That section of the code is law enacted by the Legislature that provides that the penalty for any crime is the penalty in effect at the time of the crime unless the Legislature expressly provides otherwise. There is little left to infer. The Legislature has told us how silence in an amendatory act and retroactive application of a lowered penalty is to be construed. Application of the Estrada rule would violate an express legislative enactment.

E

There are several policy reasons why the penalty provisions in effect when the offense is committed should govern sentencing rather than those in effect at the date of sentencing or some later date. First, such a policy expresses the basic notice provisions that ex post facto principles represent. Just as the state will not be heard to surprise a defendant with an enhanced penalty, a defendant will not be heard to say he is surprised at the punishment that attended his conduct at the time he committed the act. Second, concerns for fairness as between similarly situated defendants dictate this result. Delays in the criminal system are inevitable. By focusing on the sentencing statute in effect at the date of the underlying offense, we achieve more evenhanded results. For example, three defendants who commit the same crime on the same day will be subject to identical penalties even if one pleads guilty, one delays sentencing, and one appeals. Adoption of a contrary rule would have "the effect of encouraging appeals and delays not related to guilt or innocence but employed solely to keep open the possibility of subsequent windfalls. . . ." In other words, such a rule would reward delays in the criminal process whether occasioned intentionally or caused by the fortuity of trial or appellate backlogs.

In addition, this rule is justified because it attempts to achieve the recognized goal of general societal deterrence of criminal activity by making the threat of punishment as concrete as possible.

I agree wholeheartedly with the trial judge in the Schultz case. A fair sentence cannot be captured in a fixed presumptive sentence. But I, like she, "am duty bound to follow that law."

CONCLUSION

Legislative intent controls whether a penal statute is to be given prospective or retroactive operation. The Legislature has expressed its intent in MCL 8.4a; MSA 2.214 that, absent express language to the contrary, it wishes to preserve the existing penalty for those proceedings where the underlying offense occurred prior to the effective date of the amendatory act. Had the Legislature intended these amendatory acts to operate retroactively, it would have expressly stated that intent as it has in the past. In light of the above, we conclude that the Legislature intended 1987 PA 275 and 1988 PA 47 to operate prospectively only. A defendant should be held responsible to the extent of the penalty in effect on the date an offense is committed.

Accordingly, in People v Schultz, we would reverse the decision of the Court of Appeals and reinstate the defendant's sentence. In that case, the relevant amendatory act took effect almost two years after defendant Schultz committed his offense and almost one year after the date he was tried, convicted, and sentenced.

In People v Sand, we would reverse the decision of the Court of Appeals and reinstate the defendant's sentence. In this case, the amendatory act took effect a little over two years after defendant Sand committed the underlying offense.

RILEY, C.J., and GRIFFIN, J., concurred with BRICKLEY, J.