(dissenting). Defendant was charged with premeditated murder, felony murder, and kidnapping. MCL 750.316; MSA 28.548, MCL 750.349; MSA 28.581. He pled guilty but mentally ill to murder in the second degree, MCL 750.317; MSA 28.549, and was sentenced to a term of 25 to 50 years in prison pursuant to a sentence bargain. The prosecution, as part of the bargain, dismissed the premeditated murder, felony murder and kidnapping counts. Defendant filed a motion for leave to file a delayed motion for new trial in August, 1981, alleging that the trial court did not comply with GCR 1963, 785.7 in several particulars. In October, 1981, defendant was granted a new trial. At his new trial, defendant was tried and convicted of second-degree murder and kidnapping and sentenced to 75 to 150 years on the second-degree murder count and life on the kidnapping count. Defendant appeals. I would reverse.
On appeal, defendant raises four issues.
First, he claims that the trial court erred in imposing a greater sentence upon him following his conviction by a jury than was imposed pursuant to a sentence bargain following his plea of guilty.
While pleading guilty, defendant explained what happened:
"The Court: What happened?
’’The Defendant: I invited him into the house, your Honor, and we had a hassle and we were fighting, your Honor, and I strangled him.”
*72The trial judge stated at sentencing:
"Now. Judge Evans only had one sentence. 'We were fighting and I strangled him.’ That is all he had. I had all the other evidence to suggest all sorts of sadistic acts; sexual acts, strangulation, notes that were written suggesting torture to the victim, the fact that there was a jury that found no mental illness in Mr. Mazzie and, under those circumstances, the court does not feel constrained or in any way under any legal obligation to follow the sentence that was imposed by Judge Evans. There are so many reasons that the other judge did not have in his possession at that time or in his knowledge.
"So, since this court heard this case from the beginning and has heard all the circumstances that were not known to the other judge, the court has to use its own discretion and give a sentence this court feels is in keeping with the evidence this court heard. I don’t believe I can sentence Mr. Mazzie because of what another judge did. He was not similarly knowledgeable about the facts and circumstances in this case.”
In People v Payne, 386 Mich 84; 191 NW2d 375 (1971),1 the Michigan Supreme Court interpreted North Carolina v Pearce, 395 US 711; 89 S Ct 2972; 23 L Ed 2d 656 (1969), as requiring that the "identifiable conduct” of the defendant that a sentencing judge may rely upon in imposing a more severe sentence must have occurred "after” the first sentence. The trial judge erred by increasing the defendant’s sentence. Judge Townsend’s expressed reasons for imposing a harsher sentence all relate to the facts adduced at trial relating to defendant’s heinous crime that were not known by the prior sentencing judge. The record of the second sentencing does not disclose "objective infor*73mation concerning identifiable conduct on the part of defendant occurring after the time of the original sentencing proceeding”. Payne, supra, p 97.
Next, defendant claims that the trial court erred in permitting the reinstatement of a kidnapping charge after it had been dismissed pursuant to a plea agreement.
In People v McMiller, 389 Mich 425, 431; 208 NW2d 451 (1973), the Court Stated:
"As we have seen, for policy reasons we forbid adversary procedure to expose a person to conviction for a higher offense when the independent fact finder has chosen to find him guilty of a lesser offense.” (Emphasis in original.)
In Mikowski v Grand Traverse Sheriff, 52 Mich App 66, 70; 216 NW2d 603 (1974), this Court stated:
"While the Court in McMiller did, indeed, use the terms "higher offense” and "lesser offense”, we think the Court in using those terms was not speaking only of the possible penalty which could be imposed. The public policy enunciated in McMiller was that once the prosecutor has determined that the ends of justice would be served by a plea to any charge arising out of a single transaction, the accused shall not thereafter be called upon to answer to any other charge that arises out of that transaction which will either subject him to a higher penalty or cause him to meet any additional elements of proof. In fact the Court explicitly indicated that the accused shall be 'tried on the charge to which the plea was offered’.”
On the basis of the rule adopted in McMiller and Mikowski, the defendant’s kidnapping conviction must be set aside.
Defendant also claims that the trial court erred *74in its instruction concerning legal insanity. The trial judge instructed the jury:
"Now legal insanity means that because a person is mentally ill, he cannot appreciate that the acts which he is doing are wrong and that he cannot conform his conduct to the requirements of the law. Now there are two things that are required for mental, — there are two things that are required for legal insanity. The two things are that the person, because of mental illness, cannot appreciate that the acts that he is doing are wrong. In addition to that, knowing that the act is wrong, he cannot help himself, he cannot conform his conduct to the requirements of the law.” (Emphasis added.)
Under this definition, defendant is insane if (a) he cannot appreciate the wrongfulness of his conduct and (b) he cannot conform his conduct to the requirements of the law. Since both (a) and (b) are necessary to find defendant insane, the prosecution need only negate (a) or (b) to establish defendant’s sanity. This is an incorrect statement of the law.
In People v Gasco, 119 Mich App 143, 144-145; 326 NW2d 397 (1982), lv den 414 Mich 951 (1982), the Court was confronted with the following instruction which was taken from CJI 7:8:02A as it was at that time:
" 'A person is also legally insane, if, as a result of mental illness or mental retardation, that person in that situation and in his condition lacked substantial capacity or ability to conform his conduct to the requirements of the law which he is charged with violating.
" 'Correspondingly, a person is legally sane if, despite mental illness or mental retardation, that person possesses substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the *75requirements of the law he is charged with violating.’ (Emphasis added.)”
This Court ruled that:
"While the CJI definition of legal insanity correctly states the law, the CJI definition of legal sanity is erroneous. The court’s instructions on legal sanity allow the jury to find defendant criminally responsible if it concluded that: (a) he knew the difference between right and wrong; or (b) he could conform his conduct to the requirements of the law. In fact, pursuant to MCL 768.21a(l); MSA 28.1044(1)(1), defendant would be legally sane only if both (a) and (b) were true. CJI 7:8:02A, and the trial court, should have used 'and’ instead of 'or’ in the definition of legal sanity.”
The trial court in this case may well have used CJI 7:8:02A before it was corrected on the basis of the Gaseo decision. Expert witnesses testified in support of defendant’s insanity defense. The improper instruction cannot be deemed harmless.
Defendant’s last claim of error contests the sufficiency of evidence presented at trial to support his conviction of kidnapping. In my opinion there was sufficient evidence to support the conviction.
I would reverse and remand for new trial.
Payne was reversed on the basis that North Carolina v Pearce should not be applied retroactively. Michigan v Payne, 412 US 47; 93 S Ct 1966; 36 L Ed 2d 736 (1973). However, we do not have a question of retroactivity in the present case.