U.S. Supreme Court NORTH CAROLINA v. PEARCE, 395 U.S. 711 (1969) 395 U.S. 711

NORTH CAROLINA ET AL. v. PEARCE. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 413. Argued February 24, 1969. Decided June 23, 1969.*

[Footnote *] Together with No. 418, Simpson, Warden v. Rice, on certiorari to the United States Court of Appeals for the Fifth Circuit.

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Robert C. Londerholm, Attorney General, and Edward G. Collister, Jr., Assistant Attorney General, filed a brief for the State of Kansas as amicus curiae in No. 413. William W. Van Alstyne and Melvin L. Wulf filed a brief for the American Civil Liberties Union et al. as amici curiae in both cases.

MR. JUSTICE STEWART delivered the opinion of the Court.

When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial? That is the question presented by these two cases.

In No. 413 the respondent Pearce was convicted in a North Carolina court upon a charge of assault with intent to commit rape. The trial judge sentenced him to prison for a term of 12 to 15 years. Several years later he initiated a state post-conviction proceeding which culminated in the reversal of his conviction by the Supreme Court of North Carolina, upon the ground that an involuntary confession had unconstitutionally been admitted in evidence against him, 266 N.C. 234, 145 S. E. 2d 918. He was retried, convicted, and sentenced by the trial judge to an eight-year prison term, which, when added to the time Pearce had already spent in prison, the parties agree amounted to a longer total sentence than that originally imposed.[Footnote 1] The conviction and sentence were affirmed on appeal. 268 N.C. 707, 151 S. E. 2d 571. Pearce then began this habeas corpus proceeding in the United States District Court for the Eastern District

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of North Carolina. That court held, upon the authority of a then very recent Fourth Circuit decision, Patton v. North Carolina, 381 F.2d 636, cert. denied, 390 U.S. 905, that the longer sentence imposed upon retrial was "unconstitutional and void."[Footnote 2] Upon the failure of the state court to resentence Pearce within 60 days, the federal court ordered his release. This order was affirmed by the United States Court of Appeals for the Fourth Circuit, 397 F.2d 253, in a brief per curiam judgment citing its Patton decision, and we granted certiorari. 393 U.S. 922.

In No. 418 the respondent Rice pleaded guilty in an Alabama trial court to four separate charges of second-degree burglary. He was sentenced to prison terms aggregating 10 years.[Footnote 3] Two and one-half years later the judgments were set aside in a state coram nobis proceeding, upon the ground that Rice had not been accorded his constitutional right to counsel. See Gideon v. Wainwright, 372 U.S. 335. He was retried upon three of the charges, convicted, and sentenced to prison terms aggregating 25 years.[Footnote 4] No credit was given for the time he had spent in prison on the original judgments. He then brought this habeas corpus proceeding in the United States District Court for the Middle District of

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Alabama, alleging that the state trial court had acted unconstitutionally in failing to give him credit for the time he had already served in prison, and in imposing grossly harsher sentences upon retrial. United States District Judge Frank M. Johnson, Jr., agreed with both contentions. While stating that he did "not believe that it is constitutionally impermissible to impose a harsher sentence upon retrial if there is recorded in the court record some legal justification for it," Judge Johnson found that Rice had been denied due process of law, because "[u]nder the evidence in this case, the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review and for having the original sentences declared unconstitutional." 274 F. Supp. 116, 121, 122. The judgment of the District Court was affirmed by the United States Court of Appeals for the Fifth Circuit, "on the basis of Judge Johnson's opinion," 396 F.2d 499, 500, and we granted certiorari. 393 U.S. 932.

The problem before us[Footnote 5] involves two related but analytically separate issues. One concerns the constitutional

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limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial. The other is the more limited question whether, in computing the new sentence, the Constitution requires that credit must be given for that part of the original sentence already served. The second question is not presented in Pearce, for in North Carolina it appears to be the law that a defendant must be given full credit for all time served under the previous sentence. State v. Stafford, 274 N.C. 519, 164 S. E. 2d 371; State v. Paige, 272 N.C. 417, 158 S. E. 2d 522; State v. Weaver, 264 N.C. 681, 142 S. E. 2d 633. In any event, Pearce was given such credit.[Footnote 6] Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala. App. 450, 192 So.2d 456; Ex parte Merkes, 43 Ala. App. 640, 198 So.2d 789.[Footnote 7] And respondent Rice, upon being resentenced, was given no credit at all for the two and one-half years he had already spent in prison.

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retrial, credit must be given for time served under the original sentence. We then consider the broader question of what constitutional limitations there may be upon the imposition of a more severe sentence after reconviction. I. The Court has held today, in Benton v. Maryland, post, p. 784, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections.[Footnote 8] It protects against a second prosecution for the same offense after acquittal.[Footnote 9] It protects against a second prosecution for the same offense after conviction.[Footnote 10] And it protects against multiple punishments for the same offense.[Footnote 11] This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured. The Court stated the controlling constitutional principle almost 100 years ago, in the landmark case of Ex parte Lange, 18 Wall. 163, 168:

"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And . . . there has never been any doubt of [this rule's] entire and complete protection of the party

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when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.

. . . . .

". . . [T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it." Id., at 173.

We think it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully "credited" in imposing sentence upon a new conviction for the same offense. The constitutional violation is flagrantly apparent in a case involving the imposition of a maximum sentence after reconviction. Suppose, for example, in a jurisdiction where the maximum allowable sentence for larceny is 10 years' imprisonment, a man succeeds in getting his larceny conviction set aside after serving three years in prison. If, upon reconviction, he is given a 10-year sentence, then, quite clearly, he will have received multiple punishments for the same offense. For he will have been compelled to serve separate prison terms of three years and 10 years, although the maximum single punishment for the offense is 10 years' imprisonment. Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed.[Footnote 12]

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"credited"[Footnote 13] in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned - by subtracting them from whatever new sentence is imposed. II. To hold that the second sentence must be reduced by the time served under the first is, however, to give but a partial answer to the question before us.[Footnote 14] We turn, therefore, to consideration of the broader problem of what constitutional limitations there may be upon the general power of a judge to impose upon reconviction a longer prison sentence than the defendant originally received. A. Long-established constitutional doctrine makes clear that, beyond the requirement already discussed, the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction. At least since 1896, when United States v. Ball,

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163 U.S. 662, was decided, it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.[Footnote 15] "The principle that this provision does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence." United States v. Tateo, 377 U.S. 463, 465. And at least since 1919, when Stroud v. United States, , was decided, it has been settled that a corollary of the power to retry a defendant is the power, upon the defendant's reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.[Footnote 16] "That a defendant's conviction is overturned on collateral rather than direct attack is irrelevant for these purposes, see Robinson v. United States, 144 F.2d 392, 396, 397, aff'd on another ground, 324 U.S. 282." United States v. Tateo, supra, at 466.

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verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction, as we have recognized in Part I of this opinion.[Footnote 17] But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. The conviction has been set aside, and the unexpired portion of the original sentence will never be served. A new trial may result in an acquittal. But if it does result in a conviction, we cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment for the offense in question. To hold to the contrary would be to cast doubt upon the whole validity of the basic principle enunciated in United States v. Ball, supra, and upon the unbroken line of decisions that have followed that principle for almost 75 years. We think those decisions are entirely sound, and we decline to depart from the concept they reflect.[Footnote 18]

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having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, "penalizing those who choose to exercise" constitutional rights, "would be patently unconstitutional." United States v. Jackson, 390 U.S. 570, 581. And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to "chill the exercise of basic constitutional rights." Id., at 582. See also Griffin v. California, ; cf. Johnson v. Avery, 393 U.S. 483. But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law.[Footnote 19] "A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant." Nichols v. United States, 106 F. 672, 679. A court is "without right to . . . put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered. . . . [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." Worcester v. Commissioner, 370 F.2d 713, 718. See Short v. United States, 120 U.S. App. D.C. 165, 167, 344 F.2d 550, 552. "This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U.S. 12; Douglas v. California, 372 U.S. 353;

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Lane v. Brown, 372 U.S. 477; Draper v. Washington, 372 U.S. 487." Rinaldi v. Yeager, 384 U.S. 305, 310-311.

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.[Footnote 20]

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allows the court or jury to fix different punishments for the same crime." People v. Henderson, 60 Cal. 2d 482, 497, 386 P.2d 677, 686 (1963) (Traynor, J.).

From the point of view of the individual and his liberty, the risk here of getting from one to 15 years for specified conduct is different only in degree from the risk in Green of getting life imprisonment or capital punishment for specified conduct. Indeed, that matter was well understood by the dissenters in Green:

"As a practical matter, and on any basis of human values, it is scarcely possible to distinguish a case in which the defendant is convicted of a greater offense from one in which he is convicted of an offense that has the same name as that of which he was previously convicted but carries a significantly different punishment, namely death rather than imprisonment." 355 U.S., at 213 (Frankfurter, J., dissenting).[Footnote 1]

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running the risk of "double punishment." United States v. Ewell, 383 U.S. 116, 124. When Madison introduced to the First Congress his draft of what became the Double Jeopardy Clause, it read:

"No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence . . . ." (Emphasis supplied.) 1 Annals of Cong. 434.

The phrasing of that proposal was changed at the behest of those who feared that the reference to but "one trial" might prevent a convicted man from obtaining a new trial on writ of error. Id., at 753. But that change was not intended to alter the ban against double punishment. Sigler, A History of Double Jeopardy, 7 Am. J. Legal Hist. 283, 304-306 (1963).

"By forbidding that no person shall `be subject for the same offense to be twice put in jeopardy of life or limb,' [the safeguard of the Fifth Amendment against double punishment] guarded against the repetition of history by . . . punishing [a man] for an offense when he had already suffered the punishment for it." Roberts v. United States, 320 U.S. 264, 276 (Frankfurter, J., dissenting).[Footnote 2]

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cases as well, provided the punishment be not augmented. Ex parte Lange, 18 Wall. 163, 167-174 [additional citations omitted]. In the present case the power of the court was exercised to mitigate the punishment, not to increase it, and is thus brought within the limitation. . . .

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when it discovers new evidence warranting that result. But the individual has an interest in remaining free of double punishment. And in weighing those interests against one another, the Constitution has decided the matter in favor of the individual. See United States v. Tateo, 377 U.S. 463, 475 (Goldberg, J., dissenting).

Footnote 1 "With the benefit of Green v. United States . . . there is support emerging in favor of a broad double jeopardy rule which would protect all federal and state convicts held in prison under erroneous convictions or sentences from harsher resentencing following retrial. . . . [T]he technical argument applying that rule would be as follows: When a particular penalty is selected from a range of penalties prescribed for a given offense, and when that penalty is imposed upon the defendant, the judge or jury is impliedly `acquitting' the defendant of a greater penalty, just as the jury in Green impliedly acquitted . . . the accused of a greater degree of the same offense." Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L. J. 606, 634-635 (1935).

Footnote 2 "Our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense." Francis v. Resweber, 329 U.S. 459, 462 (opinion by Reed, J.). See also Williams v. Oklahoma, 358 U.S. 576, 584-586.

[Footnote 3] "I read the Double Jeopardy Clause as applying a strict standard. . . . It is designed to help equalize the position of government and the individual, to discourage abusive use of the awesome power of society. Once a trial starts jeopardy attaches. The prosecution must stand or fall on its performance at the trial. . . . The policy of the Bill of Rights is to make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice. The risk of judicial arbitrariness rests where, in my view, the Constitution puts it - on the Government." Gori v. United

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States, 367 U.S. 364, 372-373 (DOUGLAS, J., dissenting). This Court has never held anything to the contrary. While Stroud v. United States, , involved a defendant who received the death penalty upon retrial after successfully appealing a sentence of life imprisonment, "it appears that the case was argued . . . on the theory that the defendant was put twice in jeopardy for the same offense merely by being retried on an indictment for first degree murder. There is no indication that the Court was presented with the argument that the risk of an increased penalty on retrial violates the double jeopardy clause by being a double punishment for the same offense. Stroud thus stands for no more than the well-established proposition that the double jeopardy clause does not entitle a defendant who successfully attacks his conviction to absolute immunity from reprosecution." Patton v. North Carolina, 381 F.2d 636, 644-645 (C. A. 4th Cir. 1967).

To the extent that Stroud stands for anything to the contrary, it has been vitiated by Green v. United States, supra. People v. Henderson, 60 Cal. 2d 482, 386 P.2d 677 (1963). Other cases involving the matter of increased sentencing upon retrial have either been ones in which the matter was not before the court because the parties did not raise it, Robinson v. United States, 144 F.2d 392 (C. A. 6th Cir. 1944), aff'd, 324 U.S. 282, or because it was not necessary to a decision, Fay v. Noia, 372 U.S. 391, 440; or state cases in which this Court applied a loose standard of due process in lieu of the uncompromising dictates of the Double Jeopardy Clause, Palko v. Connecticut, ; Francis v. Resweber, 329 U.S. 459.

[Footnote 4] Among the federal courts, some agree that increased sentencing upon retrial constitutes double jeopardy, Patton v. North Carolina, 381 F.2d 636 (C. A. 4th Cir. 1967); United States v. Adams, 362 F.2d 210 (C. A. 6th Cir. 1966). Other courts of appeals have found it unnecessary to resolve the matter but have indicated that,

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by newly developed evidence, People v. Mulier, 12 Mich. App. 28, 162 N. W. 2d 292; People v. Thiel, 29 App. Div. 2d 913, 289 N. Y. S. 2d 879; and State v. Leonard, 39 Wis. 2d 461, 159 N. W. 2d 577 (1968).

Although unwilling to place a ceiling over the sentencing at retrial, some States do allow credit for time already served, Tilghman v. Culver, 99 So.2d 282 (Fla. 1957) (based on double jeopardy); Moore v. Parole Board, 379 Mich. 624, 154 N. W. 2d 437 (1967) (based on a local statute); State v. Boles, 151 W. Va. 1033, 159 S. E. 2d 36 (1967) (based on due process and equal protection); Gray v. Hocker, 268 F. Supp. 1004 (D.C. Nev. 1967) (based on equal protection); Hill v. Holman, 255 F. Supp. 924 (D.C. M. D. Ala. 1966) (based on due process). In the federal regime, the matter of credit is governed by statute, 18 U.S.C. 3568.

Most States do permit increased sentencing on retrial without limit, Ex parte Barnes, 44 Ala. App. 329, 208 So.2d 238 (1968); Kohlfuss v. Warden of Connecticut State Prison, 149 Conn. 692, 183 A. 2d 626 (1962); Bohannon v. District of Columbia, 99 A. 2d 647 (D.C. Mun. Ct. App. 1953); Salisbury v. Grimes, 223 Ga. 776, 158 S. E. 2d 412 (1967); State v. Kneeskern, 203 Iowa 929, 210 N. W. 465 (1926); State v. Morgan, 145 La. 585, 82 So. 711 (1919); State v. Young, 200 Kan. 20, 434 P.2d 820 (1967); Hobbs v. State, 231 Md. 533, 191 A. 2d 238 (1963); Moon v. State, 250 Md. 468, 243 A. 2d 564 (1968); Hicks v. Commonwealth, 345 Mass. 89, 185 N. E. 2d 739 (1962); Sanders v. State, 239 Miss. 874, 125 So.2d 923 (1961); Commonwealth ex rel. Wallace v. Burke, 169 Pa. Super. 633, 84 A. 2d 254 (1951); State v. Squires, 248 S. C. 239, 149 S. E. 2d 601 (1966).

Some States go so far as to deny credit against the new sentence for time already served in prison under the former one. People v. Starks, 395 Ill. 567, 71 N. E. 2d 23 (1947); McDowell v. State, 225 Ind. 495, 76 N. E. 2d 249 (1947); State v. King, 180 Neb. 631, 144 N. W. 2d 438 (1966); Morgan v. Cox, 75 N. M. 472, 406 P.2d 347 (1965); State v. Meadows, 216 Tenn. 678, 393 S. W. 2d 744 (1965).

[Footnote 5] "In Swaim v. United States, 165 U.S. 553, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional." Reid v. Covert, 354 U.S. 1, 37-38, n. 68 (opinion of BLACK, J.).

[Footnote 6] To rely on information that has developed after the initial trial gives the Government "continuing criminal jurisdiction" to supplement its case against the defendant, far beyond the cut-off date set by its original prosecution. Consider the defendant whose sentence on retrial is enlarged because of antisocial acts committed in prison. To increase his sentence on that original offense because of wholly subsequent conduct is indirectly to hold him criminally responsible for that conduct.

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courts must of course set aside the punishment if they find, by the normal judicial process of fact-finding, that such a motivation exists. But, beyond this, the courts are not vested with any general power to prescribe particular devices "[i]n order to assure the absence of such a motivation." Numerous different mechanisms could be thought of, any one of which would serve this function. Yet the Court does not explain why the particular detailed procedure spelled out in this case is constitutionally required, while other remedial devices are not. This is pure legislation if there ever was legislation.

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prosecution. The danger of improper motivation is of course ever present. A judge might impose a specially severe penalty solely because of a defendant's race, religion, or political views. He might impose a specially severe penalty because a defendant exercised his right to counsel, or insisted on a trial by jury, or even because the defendant refused to admit his guilt and insisted on any particular kind of trial. In all these instances any additional punishment would of course be, for the reasons I have stated, flagrantly unconstitutional. But it has never previously been suggested by this Court that "[i]n order to assure the absence of such a motivation," this Court could, as a matter of constitutional law, direct all trial judges to spell out in detail their reasons for setting a particular sentence, making their reasons "affirmatively appear," and basing these reasons on "objective information concerning identifiable conduct." Nor has this Court ever previously suggested in connection with sentencing that "the factual data . . . must be made part of the record." On the contrary, we spelled out in some detail in Williams v. New York, (1949), our reasons for refusing to subject the sentencing process to any such limitations, which might hamstring modern penological reforms, and the Court has, until today, continued to reaffirm that decision. See, e. g., Specht v. Patterson, 386 U.S. 605 (1967). There are many perfectly legitimate reasons that a judge might have for imposing a higher sentence. For instance, take the case of respondent Rice. Without a lawyer, he pleaded guilty to four charges of burglary and received a sentence of only 10 years. Although not shown by the record, what happened is not difficult to see. It is common knowledge that prosecutors frequently trade with defendants and agree to recommend low sentences in return for pleas of guilty. Judges frequently accept such agreements without carefully scrutinizing

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between what the Constitution says and means and what the judges from day to day, generation to generation, and century to century, decide is fairest and best for the people. Deciding that an ambiguous or self-contradictory law violates due process is a far cry from holding that a law violates due process because it is "unfair" or "shocking" to a judge or violates "the Anglo-American legal heritage." A due process criminal trial means a trial in a court, with an independent judge lawfully selected, a jury, a defendant's lawyer if the defendant wants one, a court with power to issue compulsory process for witnesses, and with all the other guarantees provided by the Constitution and valid laws passed pursuant to it. See, e. g., Chambers v. Florida, 309 U.S. 227, 235-237, 240-241 (1940); Toth v. Quarles, (1955). That is the difference for me between our Constitution as written by the Founders and an unwritten constitution to be formulated by judges according to their ideas of fairness on a case-by-case basis. I therefore must dissent from affirmance of the judgment in the case of respondent Pearce.

[Footnote 1] At Rice's second trial one of the four charges originally pressed against him was dropped, and he was tried only on the remaining three.

[Footnote 2] At the time of sentencing after Pearce's second trial, the judge stated:

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Given Benton, it is my view that the decision of this Court in Green v. United States, 355 U.S. 184 (1957), from which I dissented at the time, points strongly to the conclusion, also reached by my Brother DOUGLAS, ante, p. 726, that the Double Jeopardy Clause of the Fifth Amendment governs both issues presently decided by the Court. Accordingly, I join in Part I of the Court's opinion, and concur in the result reached in Part II, except in one minor respect.1

Green v. United States, supra, held in effect that a defendant who is convicted of a lesser offense included in that charged in the original indictment, and who thereafter secures reversal, may be retried only for the lesser included offense. Mr. Justice Frankfurter observed, in a dissent which I joined, that:

"As a practical matter, and on any basis of human values, it is scarcely possible to distinguish a case in which the defendant is convicted of a greater offense from one in which he is convicted of an offense that has the same name as that of which he was previously convicted but carries a significantly [increased] . . . punishment . . . ." Id., at 213.

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I therefore conclude that, consistent with the Fifth Amendment, a defendant who has once been convicted and sentenced to a particular punishment may not on retrial be placed again in jeopardy of receiving a greater punishment than was first imposed. Because the Double Jeopardy Clause has now been held applicable to the States, Benton v. Maryland, supra, I would affirm the judgment of the Court of Appeals in No. 418, and vacate and remand in No. 413, so that respondent Pearce may finish serving his first, valid sentence. See n. 1, supra.

[Footnote 1] An outright affirmance in No. 413 would carry the consequence of relieving the respondent Pearce from serving the remaining few months of his original state sentence. See the Court's opinion, ante, at 713-714 and n. 1. There is no basis, whether the result in this case is governed by due process or double jeopardy, for such an interference with the State's legitimate criminal processes. I would therefore vacate the judgment of the Court of Appeals for the Fourth Circuit in No. 413 and remand the case so that an order may be entered releasing Pearce at, but not before, the expiration of his first sentence. Cf. Peyton v. Rowe, (1968).

[Footnote 2] A prohibition against enhanced punishment on retrial does not, of course, tend in any manner to encourage frivolous appeals. A contrary rule does not discourage frivolous appeals, except insofar as it discourages all appeals.

[Footnote 3] The would-be appellant's quandary is most clearly seen when the first trial and conviction for a capital offense result in a sentence of life imprisonment. Cf., e. g., Green v. United States, supra.

[Footnote 4] Indeed, the Court relies on these cases in Part I of its opinion to hold that a prisoner must be afforded credit for time served pursuant to a subsequently vacated sentence.

[Footnote 5] Neither Lange nor Benz indicates that the principle prohibiting the imposition of an enhanced sentence on the same judgment of conviction depends on whether the original sentence is vacated on the prisoner's application, or is set aside sua sponte by the court. (It appears, though not clearly, that Lange's sentence was set aside at his behest.)

In Murphy v. Massachusetts, 177 U.S. 155 (1900), however, the Court indicated that one who successfully moves to vacate his sentence occupies "the same posture as if he had sued out his writ of error on the day he was first sentenced, and the mere fact that by reason of his delay in doing so he had served a portion of the erroneous sentence could not entitle him to assert that he was being twice punished." Id., at 161-162. Thus, the Court concluded in Murphy not only that the sentence could be augmented, but also that the petitioner was not constitutionally entitled to any credit for time served under the first sentence.

This proves too much, as the Court today holds in Part I of its opinion. In my view, neither conclusion survives Green.

[Footnote 6] Stroud pitched his double jeopardy claim on the theory that, although "the constitutional prohibition does not prevent a second trial after reversal in non-capital cases," it does - without reference to the sentence imposed - preclude "a second trial upon reversal of a conviction in a capital case." Brief for Plaintiff in Error in No. 276, O. T. 1919, p. 32. Stroud's argument as to the enhanced sentence appears based solely on nonconstitutional grounds. See id., at 89 et seq.

[Footnote 7] This fiction would seem to lead to a result which even the majority might have difficulty reconciling with the Double Jeopardy Clause's prohibition of multiple punishment. Consider the situation of a defendant who successfully vacates a conviction and is then retried and convicted after he has fully served the sentence first imposed. See Street v. New York, 394 U.S. 576 (1969); Sibron v. New York, 392 U.S. 40 (1968); Ginsberg v. New York, 390 U.S. 629 (1968). Although the sentence was fully served, the defendant himself has caused the judgment to be vacated, and the majority's "nullification" principle would seem to allow the judge to impose a new sentence of imprisonment on him - so long as the new sentence was an "increased" sentence rather than the result of the court's failure to "credit" the defendant with the sentence he had completed.

[Footnote 8] That the new facts may consist of misdeeds committed by the defendant since the first trial, rather than prior misconduct only subsequently discovered, should not, in my view, alter the outcome

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