
    PEOPLE v MURPH (ON REHEARING)
    Docket No. 109778.
    Submitted February 13, 1990, at Lansing.
    Decided August 19, 1991, at 9:50 a.m.
    Leave to appeal sought.
    Leon C. Murph was convicted by a jury in the Eaton Circuit Court, Richard M. Shuster, J., of two counts of kidnapping, two counts of armed robbery, two counts of possession of a firearm during the commission of a felony, and unlawfully driving away an automobile. He was sentenced to a concurrent prison term of forty to sixty years for each kidnapping and armed robbery conviction and of thirty to sixty months for unlawfully driving away an automobile, and to a consecutive term of two years for each of the felony-firearm convictions. The defendant appealed. The Court of Appeals, Wahls and Sawyer, JJ. (Michael J. Kelly, P.J., dissenting), affirmed. 185 Mich App 476 (1990). The Court of Appeals, Michael J. Kelly, P.J., and Wahls, J. (Sawyer, J., dissenting), thereafter granted the defendant’s motion for rehearing.
    On rehearing, the Court of Appeals held:
    
    The convictions are affirmed. The sentences of forty to sixty years for each of the kidnapping and armed robbery convictions arguably are disproportionate. These sentences are set aside and the case is remanded for resentencing before a different judge. The sentences for unlawfully driving away an automobile and the felony-firearm convictions are affirmed.
    Affirmed and remanded.
    Sawyer, J., dissenting, would affirm in every respect.
    
      Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, G. Michael Hocking, Prosecuting Attorney, and William M. Worden, Assistant Prosecuting Attorney, for the people.
    
      Douglas R. Mullkoff and Patricia S. Slomski, for the defendant on appeal.
   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.  