dissenting.
The majority of this Court of Appeals panel has applied clear logic, rules of fair play, and sound precedent from the State of Connecticut [State v. Raucci, 21 Conn.App. 557, 575 A.2d 234 (1990)] and from the Federal Seventh Circuit [U.S. v. Shue, 825 F.2d 1111 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987) ] in reaching a result that seems to assure that Alvin Hersch does not escape appropriate penalties for his conduct. I have a much more complex view of the situation.
The majority opinion shuns the clear language of Rule 35, N.D.R.Crim.P., and the instructions contained in recent decisions that have not been set aside or explained in any manner. I do not understand how this panel can have a view that the Bryan, supra, and Garvin, supra, opinions are not precedent.
Justice VandeWalle, in explaining Rule 35, stated:
“Under Rule 35 a sentencing court may only correct an illegal sentence, correct a sentence imposed in an illegal manner, or reduce a sentence. Bryan’s original sentence was not illegal or imposed in an illegal manner. The second sentence did not reduce the original sentence; it increased the punishment. Therefore, the trial judge’s attempt to change Bryan’s original sentence violates the provisions of Rule 35. As we said in State v. Rueb, 249 N.W.2d 506, 511 (N.D.1976): ‘The change or modification of a sentence is permitted in North Dakota now, but only pursuant to Rule 35, NDRCrimP.’ ” State v. Bryan, 316 N.W.2d 335, 337-338 (N.D.1982). [Emphasis added.]
See also opinion by Erickstad, Chief Justice in State v. Garvin, 329 N.W.2d 621 (N.D.1983).
It is my view that it is entirely appropriate that a sentence which covers more than one conviction be considered a “package” but as was recognized by Circuit Judge Ripple in U.S. v. Shue, supra, at 1115, sentencing packages can become “unbundled” because of a successful appeal, just as has happened in this ease. To say that there will be ample opportunity to explore the sentencing limits on the sentencing judge when and if there is an election to retry the remaining counts, (U.S. v. Shue, supra, at 1116), can be, at best only a delay of the inevitable or another grand opening of an entirely new can of worms.
Judge Borden acknowledged, in State v. Raucci, supra, at 236, that “the defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package, and, thus, the proper remedy is to vacate it in its entirety.”
The judgment by North Dakota Supreme Court in State v. Hersch, 445 N.W.2d 626 (N.D.1989), did not “vacate it in its entire*467ty” but “[ajffirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.”
The Supreme Court thus began the “un-bundling” of the sentencing package and even though we do not understand why, we must assume that it was intentional. When the prosecutor moved for resentenc-ing on Counts 4 and 6, the “unbundling” was complete. I would reverse the judgment and remand to the trial court with specific instructions to “repackage” by a retrial of the remaining seven counts and then a new sentence which disposes of all counts.