dissenting in part and concurring in part.
I disagree with the holding of the majority that the trial judge erred in failing to find a nonstatutory mitigating factor. The majority opinion relies on State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (1983) and State v. Gardner, 312 N.C. 70, 320 S.E. 2d 688 (1984), to support the holding that defendant is entitled to a new sentencing hearing based on the trial judge’s failure to find defendant’s good postconviction prison conduct as a nonstatutory mitigating factor. These cases do not, in my judgment, support such conclusion.
In State v. Jones the defendant assigned error to the trial judge’s failure to find as a mitigating factor, set forth in G.S. 15A-1340.4(a)(2)(c), that “[t]he defendant was a passive participant or played a minor role in the commission of the offense.” Our Supreme Court held that when evidence in support of a statutory aggravating or mitigating factor was uncontradicted, substantial and credible, the sentencing judge errs if he fails to find this statutory factor, and “to permit the sentencing judge simply to ignore it would eviscerate the Fair Sentencing Act.” State v. Jones, 309 N.C. at 219, 306 S.E. 2d at 454. Similarily, in State v. Gardner our Supreme Court held that the trial court erred in failing to find, ex mero motu, that “the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer,” G.S. 15A-1340.4(a)(2)(l), when the substantial, uncon-*251tradicted and manifestly credible evidence supported such finding. The court concluded:
We wish to make it abundantly clear that the duty of the trial judge to find a mitigating factor that has not been submitted by defendant arises only when the evidence offered at the sentencing hearing supports the existence of a mitigating factor specifically listed in N.C. Gen. Stat. § 15A-1340.4(a)(2) and when the defendant meets the burden of proof established in State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (1983). The trial judge is not required to consider whether the evidence supports the existence of non-statutory mitigating factors in the absence of specific request by defense counsel.
State v. Gardner, 312 N.C. at 73, 320 S.E. 2d at 690. The last sentence does not, as the majority opinion suggests, impose a duty on the trial judge to find a nonstatutory mitigating factor. Rather, it simply provides that if defense counsel fails to request such finding, the trial judge is not required to consider whether the evidence supports the nonstatutory mitigating factor.
As our Supreme Court explained in State v. Melton, 307 N.C. 370, 298 S.E. 2d 673 (1983), if the judge imposes a term different from the presumptive term, he must consider the statutory aggravating and mitigating factors, and he may consider nonstat-utory factors that he finds proved by the preponderance of the evidence and reasonably related to the purposes of sentencing. I find no North Carolina case which imposes a duty on a sentencing judge to find a nonstatutory mitigating factor, and I read G.S. 15A-1340.4(a) as allowing, rather than requiring, nonstatutory factors to be considered. Moreover, in my opinion, the following cases relied upon by the majority, State v. Watson, 65 N.C. App. 411, 309 S.E. 2d 2 (1983) and State v. Lewis, 38 N.C. App. 108, 247 S.E. 2d 282 (1978), which are not Fair Sentencing Act cases, have little relevance to the instant case. Both of these cases involved the trial court’s failure to make a “no benefit” finding as required under G.S. 148-49.14, and were remanded by this court for a de novo sentencing hearing. Neither case addressed the issue of postconviction behavior as a mitigating factor in sentencing a defendant under the Fair Sentencing Act.
In State v. Stone, 71 N.C. App. 417, 322 S.E. 2d 413 (1984), also cited by the majority, the defendant assigned error to the *252trial court’s failure to consider and give weight to his postconviction behavior as a nonstatutory mitigating factor. The trial judge found these factors in mitigation, but declined to give them any weight because “these are matters to be considered by the Board of Parole as they occurred after sentence was imposed [on 19 July 1982, and] [h]e is not entitled to consideration twice.” This court found that the trial judge was within his discretion in failing to give weight to the nonstatutory mitigating factors and agreed that it was a matter to be considered by the Department of Correction in awarding “gain time” and “good time.”
I do not find that the trial court erred in failing to find defendant’s postconviction conduct as a nonstatutory mitigating factor. In my view, finding or refusing to find a nonstatutory mitigating factor is entirely within the trial judge’s discretion and not reviewable on appeal.
The majority also observes that the trial judge erred in finding, as a factor in aggravation, that “[t]he defendant used a deadly weapon at the time of the crimes.” I agree with the majority that there was no evidence that defendant used his gun during the kidnapping. The finding in aggravation is, however, appropriate for the larceny offense. In his statement made to Detective Ted Lambert, defendant said, “We traveled a distance of about 8 miles. There was a house there and I told Ted that was my mother’s house. We pulled up in the driveway and I opened my door and said, ‘Ted you don’t know me very well. I don’t want to use this gun. I just want you to get out.’ He didn’t get out.”
Nevertheless, the case must be remanded for resentencing since the offenses were consolidated for judgment.