(dissenting). The majority holds that a legislative reduction of the maximum penalty for the crime for which the defendant was incarcerated is not a “new factor” entitling the defend*549ant to a hearing on the merits of his motion for sentence modification. The majority reasons that because the legislative reduction of the penalty is not automatically retroactive, it is “not highly relevant to the imposition of sentence.” {Supra, p 547.) I disagree and would affirm the decision of the court of appeals.
I agree that this court’s decision in Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540 (1978), precludes an automatic reduction of the defendant’s sentence. Like the court of appeals, though, I think that reliance on Moore is misplaced. The defendant in this case does not argue that he is entitled to an automatic sentence reduction; he argues only that the legislative reduction of the maximum penalty is a “new factor” providing the jurisdictional prerequisite for the circuit court’s consideration of the merits of the motion for sentence reduction. The issue, therefore, is not whether the defendant is entitled to relief, but whether the legislative sentence reduction falls within this court’s definition of “new factor,” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69, 73 (1975), so that the circuit court may consider whether the defendant is entitled to relief. The only issue on this appeal is whether the legislative reduction of the penalty meets the first part of the Rosado test, that is, whether the factor is highly relevant.
I conclude, as did the court of appeals, that a legislative reduction in the maximum penalty reflects the legislature’s assessment of the gravity of the offense. Since the gravity of the offense is one of the “primary factors to be considered in imposing sentence,” Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559 (1980), the legislative change in penalty is highly relevant to a consideration of whether a sentence exceeding the new maximum penalty should be modified. This is not to say that the circuit court should modify the sentence. When the circuit court considers the defendant, the multiple offenses, *550the victim, the public interest, the sentence imposed, and other factors, it may decide not to modify the sentence.
I would affirm the decision of the court of appeals and remand this case for consideration of the merits of the petition for sentence modification.