dissenting.
I do not believe that Sundberg should receive a sentence in excess of five years. As we pointed out in Sundberg v. State, 636 P.2d 619, 622 (Alaska App.1981), Sundberg’s crime, if committed under the current criminal code, would have constituted theft in the second degree under AS 11.46.130. Theft in the second degree is a class C felony with a maximum sentence of five years. Since Sundberg’s conviction would be his third felony offense, he would be subject to a presumptive sentence of three years under the current criminal code unless aggravating or mitigating factors were established under AS 12.55.155. The state has not suggested that any aggravating factors would apply in Sundberg’s case.
*117There is likewise no suggestion that the state could have filed any charge but theft in the second degree under the current criminal code. It seems apparent that had Sundberg’s crime been committed a little over one month later, when the current criminal code was in effect, he would have received a presumptive sentence of three years. Under the current criminal code, Sundberg would not be eligible for parole on his presumptive three year sentence. AS 33.15.180. He would receive one day of good time for every three days of good conduct. AS 33.20.010.
In Whittlesey v. State, 626 P.2d 1066, 1068 (Alaska 1980), the supreme court recognized the validity of referring to the current criminal code in setting an appropriate sentence under the former criminal code. The court said:
The State and Whittlesey, in their briefs, take opposite positions with respect to the significance of the sentencing provisions of the new criminal code for cases in which they do not control. The comprehensive and explicit standards of the new criminal code are the most recent expressions of legislative policy in the highly subjective realm of sentencing. They are the result of long and careful deliberation by that body. We agree with Whittlesey that the sentencing provisions of the new criminal code are useful and relevant in the determination of an appropriate sentence under the present circumstances ....
It seems to me only fair to look to the current criminal code as a guide to whether Sundberg’s sentence is appropriate, particularly where Sundberg’s crime took place just before the current code came into effect and where he was actually sentenced when the current code was in effect.
Using the current criminal code as a guide, I believe that a sentence of eight years is too severe compared to the sentence which Sundberg would receive under the current criminal code, even when I consider the fact that his parole would be restricted on a sentence under the current code. I believe that the maximum sentence which could be justified under these circumstances would be a sentence of five years.
BRYNER, C.J., not participating.