People v. Murph

476 N.W.2d 500, 190 Mich. App. 707

Opinion

on rehearing

Before: Michael J. Kelly, P.J., and Wahls and Sawyer, JJ.

Michael J. Kelly, P.J.

On September 17, 1990, this Court issued an opinion affirming over my dissent. 185 Mich App 476; 463 NW2d 156 (1990). On February 5, 1991, we granted rehearing over Judge Sawyer’s dissent.

On reconsideration, Judge Wahls and I agree that the sentences of forty years to sixty years are arguably disproportionate and that the matter should be remanded to a different judge for resentencing. An evidentiary hearing shall be held upon request, at which the parties may argue proportionality and submit proofs.

On reconsideration, we hold that the other errors alluded to in my dissent in our original opinion are harmless beyond a reasonable doubt.

The convictions are affirmed. The sentences of forty to sixty years in prison for the kidnapping and armed robbery convictions are set aside. The sentence of thirty to sixty months for unlawfully driving away an automobile and the two terms of two years in prison for the convictions of possession of a firearm during the commission of a felony are affirmed. Remanded for resentencing before a different judge. We do not retain jurisdiction.

Wahls, J., concurred. Sawyer, J., dissented. He would affirm in every respect.