dissenting.
I dissent to that portion of this decision which sets aside the sentence of life imprisonment previously imposed and remands for resentencing.
It is my opinion that where, as here, the punishment of life imprisonment has been imposed for murder, permitting a possible resentence of death if the State cross-appeals will have such a chilling effect as to cause a defendant with a life sentence to forego a meritorious appeal. I agree with Justice Stewart, who in North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969), quoted from Worcester v. Comm. of Internal Revenue, 370 F.2d 713, 718 (1st Cir. 1966):
“[I]t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.”
The judgment of conviction and sentence should be affirmed.