dissenting.
I am in agreement with the majority that this sentence appeal presents the single issue of whether the sentencing judge was clearly mistaken in ordering two terms to run consecutively, instead of concurrently.
Further, I concur with the majority that this case should be decided within the sentencing objectives we enumerated in State v. Chaney, 477 P.2d 441 (Alaska 1970). Specifically, we stated in Chaney:
Sentence review by this court must be carried out with a view to effectuate the purposes of the 1969 act, as well as the goals of sentence review in general. The objectives of sentence review have been said to be:
(iv) to promote the development and application of criteria for sentencing which are both rational and just.1
To effectuate the objectives set forth in section (iv), in Cleary v. State, 548 P.2d 952 (Alaska 1976), we cited with approval to the American Bar Association’s Standards on Sentencing Alternatives and Procedures, quoting from section 3.4 at page 24 (Approved Draft 1968), as follows:
Imposition of a consecutive sentence should require the affirmative action of the sentencing court. The court should be authorized to impose a consecutive sentence only after a finding that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.2
In the commentary following section 3.4 the objectives of the Standard are discussed, and therein it is stated:
*382Subsection (b)(iv), [§ 3.4] is intended to perform two functions. First, it indicates the Advisory Committee’s disapproval of present statutes which amount to a presumption in favor of the imposition of a consecutive sentence. See comment a, supra. The consecutive sentence should be the exception rather than the rule, and in the absence of explicit judicial action multiple sentences should be concurrent. The second function of subsection (b)(iv) is to express the conclusion that the basis of a consecutive sentence, like the basis of any other sentence which extends for an unusually long period, ought to be a finding by the court that the defendant poses such an exceptional risk to the public that long-term incarceration is necessary as a protective measure.3
Thus, as I read section 3.4 as we adopted it in Cleary in order to facilitate Chaney ’s objective to promote the development and application of criteria for sentencing, it established a procedure condition precedent to the imposition of a consecutive sentence.4 I have examined the record below and find it devoid of the necessary affirmative finding by the sentencing court establishing a need for consecutive sentences in order to protect the public from future criminal conduct by this defendant. That portion of the transcript of the sentencing proceeding cited in the majority opinion most certainly fails to support such a finding, for nowhere does Judge Occhipinti concern himself with the issue of future criminal conduct by this defendant and the necessity of consecutive sentences in order to protect the public from such conduct. For the majority to state that section 3.4 emphasizes sentences imposed consecutively so as to exceed the maximum sentence for one count is to overlook the comments pertaining to this section which state that this section serves two functions. One of the enumerated functions is the prohibition of consecutive sentences absent explicit judicial action.
Thus, I find it unnecessary to reach the question of whether the sentence was excessive; for I find procedural error below violative of the dictates of Cleary, resulting in an impermissibly structured sentence. I see today’s decision as one which furnishes no new direction to the trial courts and thus adds nothing to the development of criteria for sentencing, but rather one which will actually undermine principles of sentencing concerning the use of consecutive terms which we established in the Cleary case and which we have commanded the courts below to apply when exercising their sentencing function.
Accordingly, I would VACATE the improperly structured sentence and REMAND for resentencing.5
. 477 P.2d at 443.
. 548 P.2d at 956 (emphasis added).
. A.B.A. Standards, Sentencing Alternatives & Procedures, § 3.4 Commentary at 179 (Approved Draft 1968) (emphasis added).
. See emphasized portion of § 3.4 as set forth in text of dissent.
.I see no problem with respect to double jeopardy here so long as the sentence on remand does not exceed the actual length initially imposed.