dissenting.
I respectfully dissent for the reason that here, Riffe was granted relief from the post-conviction court and was resentenced.1 Following the resentencing hearing, at which the trial court reviewed the existence or nonexistence of aggravating and mitigating circumstances, the court imposed sentences identical to those originally imposed. It is my view that at resentencing, Riffe was entitled to application of the ameliorative amendment of I.C. 35-50-1-2.
The State takes the position that at resen-tencing, the court merely determined whether or not to impose consecutive or concurrent sentences and that such did not “affect the terms of Defendant’s sentences in any other respect.” Appellee’s Brief at 5.1 submit that given the discretion to resentence Riffe, the trial court was at liberty to drastically modify any and all aspects of the sentences to be imposed upon the five convictions. That the court did not do so, does not alter the fact that the proceeding was a de novo resen-tencing.2
Numerous cases note that in resentencing a defendant, the trial court is at liberty to increase the punishment from that originally imposed. Misztal v. State (1993) Ind.App., 620 N.E.2d 37; Sinn v. State (1993) Ind. App., 609 N.E.2d 434; Golden v. State (1990) Ind App., 553 N.E.2d 1219; Williams v. State (1986) Ind.App., 494 N.E.2d 1001; Niece v. State (1983) Ind.App., 456 N.E.2d 1081. The only caveat to the exercise of that discretion is that the new punishment may not be imposed out of vindictiveness. Texas v. McCullough (1986) 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104; Williams, supra. Again, that the court did not impose a more severe penalty in resentencing Riffe does not change the fact that the original sentence was vacated and a new sentence imposed. It does not alter the fact that the new sentence is subject to appellate review.
The de novo resentencing took place April 10, 1995, some nine months after the effective date of the ameliorative amendment to I.C. 35-50-1-2. At the time in question, the statute provided that the total of consecutive terms of imprisonment could not exceed the presumptive sentence for a felony which is one class of felony higher than the most serious of the felonies for which the defendant was convicted.
Riffe was convicted of four Class A felonies and one Class A misdemeanor. The class of felony next higher than Class A is murder. Accordingly, the consecutive sentences imposed here could not properly exceed a total of fifty years. Salone v. State (1995) Ind. App., 652 N.E.2d 552. The ameliorative provision of the amended statute was applicable to Riffe’s resentencing. Elkins v. State (1995) Ind.App., 659 N.E.2d 563.
*715The aggregate of the sentences imposed, i.e. sixty yeai-s, was excessive by ten years.3
. I fully agree with the discussion set forth in the footnote of the majority opinion. The belated appeal is a direct appeal from the resentencing order and thus does not run afoul of the stringent holding of Howard v. State (1995) Ind., 653 N.E.2d 1389. It is abundantly clear that a defendant is entitled to take a direct appeal from a sentence imposed as a result of a resentencing. See Wills v. State (1991) Ind., 578 N.E.2d 363. In this regard, the Office of the Public Defender is to be earnestly commended for its thoughtful and well-reasoned Brief in Opposition to the State’s Motion to Dismiss.
. The cases relied upon by the majority do not involve challenges to a sentence or sentences imposed upon resentencing as opposed to an original sentencing judgment. State v. Messenger (1995) Ind.App., 650 N.E.2d 702, (Sullivan J. dissenting) involved trial court dismissal of a charge which was based upon an enhancing pri- or offense which had been vacated. Although the holding of Rowold v. State (1994) Ind.App., 629 N.E.2d 1285 may not have precluded a de novo resentencing, the appeal involved a direct challenge to the appellant's conviction and sentence. The remand order itself stated that the trial court was to correct Rowold's sentence pursuant to the habitual offender statute. It would not appear that such order contemplated a resen-tencing hearing. It only contemplated application of the appropriate law. Davidovic v. State (1980) Ind.App., 408 N.E.2d 647 involved a post-conviction attack upon a conviction and sentence which had become final prior to the effective date of an ameliorative statute. Similarly, Dowdell v. State (1975), 166 Ind.App. 395, 336 N.E.2d 699 involved an unsuccessful post-conviction challenge to a 1969 conviction and sentence. Although the Court of Appeals declined to afford relief and apply a statute which had become effective only three days before the sentence was imposed, it affirmed the denial of relief; therefore, there was no modification of sentence nor a resentencing proceeding.
. It might be noted that the logical implication of my separate opinion would necessitate vacating the sentences imposed April 10, 1995 and conducting a resentencing pursuant to the statute as it presently exists. The statute in its current form would not necessarily benefit the defendant in terms of the aggregate years of imprisonment.