difrancesco argued october decided december organized crime control act grants right specified conditions appeal sentence imposed upon dangerous special offender respondent convicted federal racketeering offenses trial federal district sentenced dangerous special offender two prison terms served concurrently sentence previously imposed convictions unrelated federal trial sought review dangerous special offender sentences claiming district abused discretion imposing sentences amounted additional imprisonment respondent one year face findings made dangerous special offender hearing appeals dismissed appeal double jeopardy grounds held section violate double jeopardy clause fifth amendment pp section violate double jeopardy clause guarantee multiple trials government appeal presents threat successive prosecutions double jeopardy clause offended martin linen supply accordingly government taking review respondent sentence offend double jeopardy principles success might deprive respondent benefit lenient sentence neither history sentencing practices pertinent rulings even considerations double jeopardy policy support proposition criminal sentence pronounced accorded constitutional finality similar attaches jury verdict acquittal double jeopardy clause provide defendant right know specific moment time exact limit punishment turn pp increase sentence review constitute multiple punishment violation double jeopardy clause argument defendant perceives length sentence finally determined begins serve trial judge prohibited thereafter increasing sentence force dangerous special offender statute congress specifically provided sentence subject appeal circumstances expectation finality original sentence pp conclusion violates neither guarantee multiple punishment guarantee multiple trials consistent opinions upheld constitutionality criminal proceedings cf swisher brady pp blackmun delivered opinion burger stewart powell rehnquist joined brennan filed dissenting opinion white marshall stevens joined post stevens filed dissenting opinion post deputy solicitor general frey argued cause briefs solicitor general mccree assistant attorney general heymann victor stone edgar demoyer argued cause filed brief respondent briefs amici curiae urging affirmance filed quin denvir laurance smith state public defender california martin michaelson american civil liberties union justice blackmun delivered opinion organized crime control act pub stat contains among things definition dangerous special offender authorizes imposition increased sentence upon convicted dangerous special offender grants right specified conditions take sentence appeals review issue presented case whether authorizing appeal violates double jeopardy clause fifth amendment constitution jury trial district western district new york respondent eugene difrancesco convicted conducting affairs enterprise pattern racketeering activity conspiring commit offense violation another jury trial different judge district based indictment returned prior racketeering indictment respondent convicted damaging federal property violation unlawfully storing explosive materials violation conspiring commit offenses violation respondent first sentenced march convictions later trial received eight years charge damaging federal property five years conspiracy charge sentences served concurrently one year unlawful storage charge served consecutively sentences made total nine years imprisonment april respondent sentenced dangerous special offender two terms racketeering counts upon convicted earlier trial specified sentences served concurrently sentences imposed march dangerous special offender charge sentences thus resulted additional punishment year respondent appealed respective judgments conviction appeals second circuit sought review sentences imposed upon respondent dangerous special offender appeals unanimously affirmed judgments conviction divided vote however dismissed government appeal double jeopardy grounds two judges majority thus address merits special offender issue third judge agreeing government appeal dismissed based conclusion constitutional grounds majority grounds inapplicable facts case importance constitutional question granted government petition certiorari confined single issue respondent filed ii earlier racketeering trial evidence showed respondent involved scheme rochester area responsible least eight fires ring collaborated property owners set fire buildings return shares insurance proceeds insurers defrauded approximately result fires second trial evidence showed respondent participated columbus day bombings including bombing federal building rochester prior first trial government accordance filed trial notice alleging respondent dangerous special offender notice recited government intention seek enhanced sentences racketeering counts event respondent convicted trial respondent found guilty dangerous special offender hearing pursuant held hearing government relied upon testimony adduced trial upon public documents attested convictions respondent columbus day bombings loansharking murder app defense offered evidence conceded validity public records objected consideration murder offense conviction vacated appeal district made findings fact ruled respondent dangerous special offender within meaning statute findings set forth respondent criminal record stated record revealed virtually continuous criminal conduct past eight years interrupted relatively brief periods imprisonment found addition respondent criminal history based upon proven facts reveals pattern habitual knowing criminal conduct violent dangerous nature lives property citizens community shows defendant complete utter disregard public safety defendant virtue criminal record shown hardened habitual criminal public must protected long period possible way public protected violent dangerous criminal conduct defendant thereupon sentenced respondent concurrent terms hereinabove described app took appeal claiming district abused discretion imposing sentences amounted additional imprisonment respondent one year face findings made dangerous special offender hearing dismissal government appeal appeals rested specifically upon conclusion described inescapable subject defendant risk substitution greater sentence upon appeal government place second time jeopardy life limb iii far able ascertain never invalidated act congress double jeopardy grounds frequent occasion recently consider pass upon double jeopardy claims raised various contexts see jorn colten kentucky illinois somerville chaffin stynchcombe wilson jenkins serfass breed jones dinitz ludwig massachusetts martin linen supply lee arizona washington burks greene massey crist bretz sanabria scott swisher brady whalen illinois vitale cited cases additions past decade less numerous list double jeopardy decisions past years among earlier cases perez wheat ex parte lange wall ball kepner green fong foo downum tateo clause important vital day demonstrated host recent cases application proved facile routine demonstrated acknowledged changes direction emphasis see scott supra overruling jenkins supra burks overruling least part certain prior cases area see also note rev westen drubel toward general theory double jeopardy rev nonetheless following general principles emerge double jeopardy decisions may regarded essentially settled general design double jeopardy clause fifth amendment described green constitutional prohibition double jeopardy designed protect individual subjected hazards trial possible conviction alleged offense underlying idea one deeply ingrained least system jurisprudence state resources power allowed make repeated attempts convict individual alleged offense thereby subjecting embarrassment expense ordeal compelling live continuing state anxiety insecurity well enhancing possibility even though innocent may found guilty stated design terms specific purpose expressed various ways said primary purpose clause preserve finality judgments crist bretz integrity judgments scott also said central objective prohibition successive trials barrier affording prosecution another opportunity supply evidence failed muster first proceeding burks swisher brady implicit thought government may reprosecute gains advantage learns first trial strengths defense case weaknesses see scott dissenting opinion wilson still another consideration noted jeopardy attaches judgment becomes final constitutional protection also embraces defendant valued right trial completed particular tribunal arizona washington quoting wade hunter occasion stress placed upon punishment punishment legally follow second conviction real danger guarded constitution ex parte lange guarantee double jeopardy said consist three separate constitutional protections protects second prosecution offense acquittal protects second prosecution offense conviction protects multiple punishments offense footnotes omitted north carolina pearce acquittal accorded special weight constitutional protection double jeopardy unequivocally prohibits second trial following acquittal public interest finality criminal judgments strong acquitted defendant may retried even though acquittal based upon egregiously erroneous foundation see fong foo innocence accused confirmed final judgment constitution conclusively presumes second trial unfair arizona washington law attaches particular significance acquittal scott justified ground however mistaken acquittal may unacceptably high risk government superior resources wear defendant thereby enhancing possibility even though innocent may found guilty green see also martin linen supply necessarily afford absolute finality jury verdict acquittal matter erroneous decision emphasis original burks result definitely otherwise cases trial ended acquittal long recognized government may bring second prosecution mistrial occasioned manifest necessity perez wheat see arizona washington illinois somerville furthermore reprosecution defendant successfully moved mistrial barred long government deliberately seek provoke mistrial request dinitz similarly trial terminated prior jury verdict defendant request grounds unrelated guilt innocence government may seek appellate review decision even though second trial necessitated reversal see scott fortiori double jeopardy clause bar government appeal ruling favor defendant guilty verdict entered trier fact see wilson supra rojas de garces finally first trial ended conviction double jeopardy guarantee imposes limitations whatever upon power retry defendant succeeded getting first conviction set aside emphasis original north carolina pearce high price indeed society pay every accused granted immunity punishment defect sufficient constitute reversible error proceedings leading conviction tateo require criminal defendant stand trial successfully invoked statutory right appeal upset first conviction act governmental oppression sort double jeopardy clause intended protect scott however one exception rule double jeopardy clause prohibits retrial conviction reversed insufficiency evidence burks supra greene massey clause apply sweep absolute burks right appeal criminal case absent explicit statutory authority scott enactment first paragraph pub stat permitting government appeal criminal case except double jeopardy clause constitution prohibits prosecution necessarily concluded congress intended remove statutory barriers government appeals allow appeals whenever constitution permit wilson see also scott iv principles certain propositions pertinent present controversy emerge double jeopardy clause complete barrier appeal prosecution criminal case government appeal presents threat successive prosecutions double jeopardy clause offended martin linen supply see also wilson scott supra follows government taking review respondent sentence offend double jeopardy principles success might deprive respondent benefit lenient sentence indeed wilson scott defendant total victory trial tribunal terminated case manner allowed go free government nevertheless constitutional challenge allowed appeal double jeopardy focus thus appeal relief requested task determine whether criminal sentence pronounced accorded constitutional finality conclusiveness similar attaches jury verdict acquittal conclude neither history sentencing practices pertinent rulings even considerations double jeopardy policy support equation noted said prohibition multiple trials controlling constitutional principle wilson martin linen supply course cases show even protection retrial absolute acquittal prevents retrial even legal error committed trial ball law attaches particular significance acquittal scott appeal sentence therefore seem violation double jeopardy original sentence pronounced treated way acquittal treated appeal treated way retrial put another way argument double jeopardy finality purposes imposition sentence implied acquittal greater sentence see van alstyne gideon wake harsher penalties successful criminal appellant yale agree government approach withstand analysis reliance appeals may placed kepner misplaced focus kepner undesirability second trial furthermore fundamental distinctions sentence acquittal fail recognize ignore particular significance acquittal historically pronouncement sentence never carried finality attaches acquittal writs autre fois acquit autre fois convict protections retrial see wilson although distinction great importance early english common law nearly felonies double jeopardy principles originally limited punishable critical sentences death deportation see comment statutory implementation double jeopardy clauses new life moribund constitutional guarantee yale gained importance sentences imprisonment became common trial increase sentence long took place term permitted practice thought violate double jeopardy principle see ex parte lange dissenting opinion coke institutes ed see also commonwealth weymouth mass common law important present context double jeopardy clause drafted protections mind see wilson green dissenting opinion accounts established practice federal courts sentencing judge may recall defendant increase sentence least venture comment limitation long yet begun serve sentence see dilorenzo cert denied vincent cert denied thus may said certainty history demonstrates common law never ascribed finality sentence prevent legislative body authorizing appeal prosecution indeed countries trace legal systems english common law permit appeals see rev stat ii martin annual criminal code greenspan ed new zealand crimes act amended crimes amendment act repr stat see friedland double jeopardy decisions sentencing area clearly establish sentence qualities constitutional finality attend acquittal bozza defendant convicted crime carrying mandatory minimum sentence fine imprisonment trial however sentenced defendant imprisonment later day judge recalled defendant imposed fine imprisonment held double jeopardy constitution require sentencing game wrong move judge means immunity prisoner judge done twice put petitioner jeopardy offense north carolina pearce held absolute constitutional bar imposition severe sentence reconviction defendant successful appeal original judgment conviction rule pearce permitting increase sentence retrial part constitutional jurisprudence see chaffin stynchcombe see also stroud rule finality applied pronouncement sentence original sentence pearce served ceiling one imposed retrial pearce dealt imposition new sentence retrial rather appeal difference conceptual nicety north carolina pearce double jeopardy considerations bar reprosecution acquittal prohibit review sentence noted basic design double jeopardy provision bar repeated attempts convict consequent subjection defendant embarrassment expense anxiety insecurity possibility may found guilty even though innocent considerations however significant application prosecution statutorily granted right review sentence limited appeal involve retrial approximate ordeal trial basic issue guilt innocence appeal taken promptly essentially record sentencing defendant course charged knowledge statute appeal provisions expectation finality sentence appeal concluded time appeal expired sure appeal may prolong period anxiety may exist finite period provided statute appeal ordeal government appeal dismissal indictment information defendant primary concern anxiety obviously relate determination innocence guilt already behind defendant subject risk harassed convicted although innocent furthermore sentence characteristically determined large part basis information presentence report developed outside courtroom purely judicial determination much goes result inquiry nonadversary nature double jeopardy clause provide defendant right know specific moment time exact limit punishment turn congress established many types criminal sanctions defendant unaware precise extent punishment significant periods time even life yet sanctions considered violative clause thus double jeopardy protection revocation probation imposition imprisonment see thomas cert denied situations probation parole may revoked sentence imprisonment imposed see kuck walden cert denied jones cert denied dunn app criminal sanctions involve increase final sentence defendant aware original sentencing term imprisonment later may imposed situation us different critical respect respondent similarly aware dangerous special offender sentence subject increase appeal legitimate expectations defeated sentence increased appeal expectations defendant placed parole probation later revoked highlights distinction acquittals sentences north carolina pearce bozza demonstrate double jeopardy clause require sentence given degree finality prevents later increase critical difference acquittal sentence acquittal cases kepner fong foo require contrary result turn question whether increase sentence review constitutes multiple punishment violation double jeopardy clause appeals found conclusion appears attributable primarily extending appeal dictum benz effect federal practice barring increase sentence trial service sentence begun constitutionally based real issue benz however whether trial judge power reduce defendant sentence service begun held trial power went say gratuitously however quotations textbook ex parte lange trial may increase sentence even though increase effectuated session defendant begun service sentence dictum source ex parte lange principle lange trial erroneously imposed imprisonment fine even though authorized statute impose one two punishments lange paid fine served five days prison trial resentenced year imprisonment fine paid defendant suffered one alternative punishments power punish gone also observed impose year imprisonment maximum five days served punish twice offense holding lange thus dictum benz susceptible general application confine dictum benz lange specific context although might argued defendant perceives length sentence finally determined begins serve trial judge prohibited thereafter increasing sentence argument force dangerous special offender statute congress specifically provided sentence subject appeal circumstances expectation finality original sentence see dunsky constitutionality increasing sentences appellate review crim criminology guarantee multiple punishment evolved holdings plainly involved case ex parte lange demonstrates defendant may receive greater sentence legislature authorized double jeopardy problem presented ex parte lange congress provided offense punishable fine imprisonment even though multiple punishment see whalen concurring opinion punishment authorized congress clear specific accordingly violate guarantee multiple punishment expounded ex parte lange vi conclusion violates neither guarantee multiple punishment guarantee multiple trials consistent opinions upheld constitutionality criminal proceedings see ludwig massachusetts see also colten kentucky swisher brady affords particular support indeed precedent decision reach case concerned maryland scheme use master juvenile proceeding master receiving evidence concluded state failed show beyond reasonable doubt minor committed assault robbery master recommendation juvenile set forth conclusion state filed exceptions authorized procedural rule minor responded motion dismiss notice exceptions ground procedural rule provision de novo hearing violated double jeopardy clause state courts denied relief federal habeas held maryland system violate clause important decision fact system provide prosecution second crack record master closed additional evidence received juvenile judge consent minor ibid also held nothing procedure unfairly subjects defendant embarrassment expense ordeal second trial ibid burdens akin resulting judge permissible request briefing argument following bench trial expense second trial extent juvenile judge makes supplemental findings either sua sponte response state exceptions response juvenile exceptions either record record supplemented evidence parties raise objection without violating constraints double jeopardy clause swisher characterized proceedings master juvenile judge continuing single process distinguished situation breed jones held juvenile placed twice jeopardy adjudicatory finding juvenile transferred adult criminal tried convicted conduct like maryland system issue swisher subject defendant second trial maryland system course concerns master whereas concerns federal trial difference however constitutional consequence federal trial power impose final dangerous special offender sentence subject appeal section indeed limited scope maryland procedure swisher federal statute specifies appeals may increase sentence trial abused discretion employed unlawful procedures made clearly erroneous findings appellate thus empowered correct legal error maryland procedure involved swisher judge need find legal error part master free make de novo determination facts relating guilt innocence consistent guarantee double jeopardy held limited appellate review sentence authorized necessarily constitutional exaltation form substance avoided said double jeopardy context substance action controlling label given action see martin linen supply wilson congress achieved purpose slightly different statute whose constitutionality unquestionable congress might provided defendant found dangerous special offender receive specified mandatory term trial recommend lesser sentence appeals free accept recommendation reject scheme offer conceivable base double jeopardy objection yet impact defendant exactly possibly worse impact written double jeopardy policy advanced approving one procedures declaring unconstitutional perhaps worth noting passing represents considered legislative attempt attack specific problem criminal justice system tendency part trial judges mete light sentences cases involving organized crime management personnel challenge crime free society report president commission law enforcement administration justice section congress response plea see pp statute limited scope narrowly focused problem identified example government oppression double jeopardy clause stands guard see scott observed elsewhere sentencing one areas criminal justice system need reform see frankel criminal sentences law without order churgin curtis toward effective sentencing system judge frankel observed basic problem present system unbridled power sentencers arbitrary discriminatory frankel supra appellate review creates check upon unlimited power lead greater degree consistency sentencing conclude withstands constitutional challenge raised case us judgment appeals reversed case remanded proceedings consistent opinion ordered footnotes whenever attorney charged prosecution defendant alleged felony committed defendant age years reason believe defendant dangerous special offender attorney reasonable time trial acceptance plea guilty nolo contendere may sign file may amend notice specifying defendant dangerous special offender upon conviction felony subject imposition sentence subsection section setting particularity reasons attorney believes defendant dangerous special offender case shall fact defendant alleged dangerous special offender issue upon trial felony disclosed jury upon plea guilty nolo contendere verdict finding guilty defendant felony hearing shall held sentence imposed sitting without jury shall fix time hearing notice thereof shall given defendant least ten days prior thereto shall permit counsel defendant defendant represented counsel inspect presentence report sufficiently prior hearing afford reasonable opportunity verification connection hearing defendant shall entitled assistance counsel compulsory process witnesses appear hearing duly authenticated copy former judgment commitment shall prima facie evidence former judgment commitment appears preponderance information including information submitted trial felony sentencing hearing much presentence report relies upon defendant dangerous special offender shall sentence defendant imprisonment appropriate term exceed years disproportionate severity maximum term otherwise authorized law felony otherwise shall sentence defendant accordance law prescribing penalties felony shall place record findings including identification information relied upon making findings reasons sentence imposed defendant special offender purposes section felony defendant committed felony furtherance conspiracy three persons engage pattern conduct criminal applicable laws jurisdiction defendant agreed initiate organize plan finance direct manage supervise part conspiracy conduct give receive bribe use force part conduct purposes paragraphs subsection criminal conduct forms pattern embraces criminal acts similar purposes results participants victims methods commission otherwise interrelated distinguishing characteristic isolated events defendant dangerous purposes section period confinement longer provided felony required protection public criminal conduct defendant section reads full follows respect imposition correction reduction sentence proceedings section chapter review sentence record sentencing may taken defendant appeals review sentence taken shall taken least five days expiration time taking review sentence appeal conviction defendant shall diligently prosecuted sentencing may without motion notice extend time taking review sentence period exceed thirty days expiration time otherwise prescribed law shall extend time taking review sentence time expired extending time taking review sentence shall extend time taking review sentence appeal conviction defendant period taking review sentence shall deemed taking review sentence appeal conviction defendant review sentence shall include review whether procedure employed lawful findings made clearly erroneous sentencing discretion abused appeals review sentence may considering record including entire presentence report information submitted trial felony sentencing hearing findings reasons sentencing affirm sentence impose direct imposition sentence sentencing originally imposed remand sentencing proceedings imposition sentence except sentence may made severe review sentence taken hearing failure take review imposition sentence shall upon review taken correction reduction sentence foreclose imposition sentence severe previously imposed withdrawal dismissal review sentence taken shall foreclose imposition sentence severe reviewed shall otherwise foreclose review sentence appeal conviction appeals shall state writing reasons disposition review sentence review sentence taken may dismissed showing abuse right take review shall person subject offence twice put jeopardy life limb amdt academic professional commentary general issue divided conclusions prosecution appeals sentences violate double jeopardy clause see westen three faces double jeopardy reflections government appeals criminal sentences rev stern government appeals sentences constitutional response arbitrary unreasonable sentences crim rev dunsky constitutionality increasing sentences appellate review crim criminology conclusions appeals unconstitutional see spence federal criminal code reform act prosecutorial appeal sentences justice double jeopardy md rev freeman earley difrancesco government appeal sentences crim rev note rev report government appeal sentences bus lawyer least one time ago regarded answer constitutional issue simply unclear low special offender sentencing crim reprint statement submitted hearings et al subcommittee criminal laws procedures senate committee judiciary see also aba standards criminal justice appended commentary pp ed maximum punishment violation fine imprisonment years plus specified forfeitures section specifies maximum punishment violation damage exceeds fine imprisonment years maximum punishment violation fine imprisonment one year section specifies maximum punishment violation offense object conspiracy misdemeanor fine imprisonment five years applicability respondent issue upon concurring judge rested conclusion us majority appeals observed passing trial properly find statute applicable event issue may considered reason remand summarized findings set forth conclusion follows sum basis facts finds defendant age years crimes stands convicted committed defendant stands convicted two felonies one felony committed furtherance conspiracy felony conspiracy conspiracy substantive crime involved least four persons defendant conspiracy substantive crime engage pattern conduct criminal laws state new york new york penal code article defendant initiate organize plan direct manage supervise least part conspiracy substantive criminal acts confinement defendant period longer provided violation required protection public criminal conduct defendant wherefore finding defendant eugene difrancesco convicted two felony charges october age years time commission felonies dangerous special offender within meaning sections title code therefore subject sentencing provisions section title code app indicated oral argument tr oral arg one briefs brief respondent well opinion appeals first case specifically sought review sentence inasmuch statute enacted decade ago fact might said indicate either little use special offender statute prosecutorial concern constitutionality federal trial judges imposing sufficiently severe sentences special offenders make review unnecessary definitive explanation however offered attempt part explain nonuse statute speculation shall indulge recital described favorite saying double jeopardy subject comment uncritical professor westen provocative thoughtful article three faces double jeopardy reflections government appeals criminal sentences rev professor westen describes succinctly way prohibition retrial following acquittal based jury prerogative acquit evidence course surely settled double jeopardy clause fifth amendment application fourteenth amendment benton maryland illinois vitale challenge kepner based double jeopardy clause statute extending double jeopardy protection philippines accepted decision correctly stated relevant double jeopardy principles see wilson principal dissent fails recognize import pearce according dissent analytic similarity verdict acquittal imposition sentence requires conclusion sentences may increased imposition without violating double jeopardy clause post thus imposition sentence sentence permissible dissent view implicit acquittal greater sentence ibid precisely argument unsuccessfully advanced justices douglas harlan pearce see douglas concurring harlan concurring part dissenting part majority pearce thus rejected notion imposition sentence less maximum operates implied acquittal greater sentence see principal dissent attempt distinguish pearce grounds imposition sentence followed retrial rather appeal unconvincing green held defendant convicted lesser included offense murder first trial convicted greater offense murder retrial thus conviction lesser included offense operated implicit acquittal greater since defendant sought obtained retrial case difference result reached green pearce explained grounds imposition sentence operate implied acquittal greater sentence justice stevens dissent reliance justice harlan separate opinion pearce concurring part dissenting part effect argues nothing pearce wrongly decided inclined overrule pearce somewhat similar dicta present murphy massachusetts plurality opinion reid covert latter double jeopardy case read establishing sentencing procedure indeed original bill introduced congress specifically stated sentence considered final disposition review expiration time appeal measures relating organized crime hearings et al subcommittee criminal laws procedures senate committee judiciary congress however advised language needed order preserve constitutionality statute omitted see cornell rev justice brennan justice white justice marshall justice stevens join dissenting title authorizes appeal sentence imposed federal district judge ground sentence lenient permits appellate increase severity initial sentence holds violates neither prohibition multiple punishments prohibition multiple trials embodied double jeopardy clause fifth amendment fundamentally misperceives appropriate degree finality accorded imposition sentence trial judge reaches erroneous conclusion enhancement sentence pursuant unconstitutional multiple punishment respectfully dissent acknowledges must double jeopardy clause two principal purposes protect individual subjected hazards trial possible conviction alleged offense green prevent imposition multiple punishments offense north carolina pearce overriding function double jeopardy clause prohibition multiple trials protect multiple punishments punishment legally follow second conviction real danger guarded constitution ex parte lange wall unconstitutional punishment need derive exclusively second prosecution may stem imposition one sentence following single prosecution ex parte lange supra bradley provide examples unconstitutional multiple punishments flowing single trial imprisonment fine offense punishable either imprisonment fine neither case purports exhaust reach double jeopardy clause prohibition multiple punishments indeed consistently assumed increase severity sentence subsequent imposition issue presented case also constitutes multiple punishment violation double jeopardy clause example benz stated distinction term may amend sentence mitigate punishment increase based upon ground increase penalty subject defendant double punishment offense similarly reid covert stated swaim held president commanding officer power return case increase sentence double jeopardy provisions fifth amendment applicable practice unconstitutional although benz reid statements may dicta nevertheless appeals correctly stated lthough dicta legally binding number high authority sources offer impressive evidence strength prevalence view double jeopardy clause bars increase sentence imposed district brother rehnquist recently noted double jeopardy clause interpreted ex parte lange prevents sentencing increasing defendant sentence particular statutory offense even though second sentence within limits set legislature whalen dissenting opinion ii repeatedly said sentences may increased imposition without violating double jeopardy prohibition multiple punishments analytic similarity verdict acquittal imposition sentence requires conclusion verdict acquittal represents factfinder conclusion evidence warrant finding guilty martin linen supply similarly guilty verdict murder charge jury permitted find defendant guilty murder represents factfinder implicit finding facts warrant murder conviction thus retrial murder constitutionally impermissible green supra see price georgia sentencing convicted criminal sufficiently analogous determination guilt innocence double jeopardy clause preclude government appeals sentencing decisions much prevents appeals judgments acquittal sentencing proceeding involves examination evaluation facts defendant may entail taking evidence pronouncement sentence thus imposition sentence sentence permissible sentencing statute constitutes finding facts justify sentence higher sentence unwarranted acquittals sentences trier fact makes factual adjudication removes defendant burden risk charges acquitted potential sentence receive unless basis according greater finality acquittals whether explicit implicit sentences result untenable proffers several reasons acquittals sentences treated differently none persuasive first suggests historical evidence supports distinction finality accorded verdicts sentences ante observation writs autre fois acquit autre fois convict protections retrial ante true fact dispose additional purpose double jeopardy clause prevent multiple punishments sort authorized moreover practice increasing sentence long took place term ante long defendant yet begun serve sentence ante never sanctioned second posits government right appeal final sentence imposed trial judge different critical respect ante parole probation revocation extraordinary statement overlooks obvious differences proceedings defendant knows sentencing maximum length time may serve maximum shortened parole probation hand since parole probation definition conditional defendant notice outset breach conditions may result revocation beneficial treatment worst defendant point view original sentence may reinstated furthermore revocation parole probation results change circumstance subsequent grant parole probation government appeal sentence predicated defendant activity since imposition original sentence government unlikely present evidence activity third argues congress provided dangerous special offenders sentenced specified mandatory term reduced appeal appeals ante thus concludes striking elevate form substance since congress obtained result sought slightly different statute whose constitutionality unquestionable ante strange conclusion must review statutes written might written event hypothetical legislation slightly different substantially different create wholly unprecedented change relationship trial appellate courts long congress retains present structure sentences trial courts final judgments form well substance law militate government appeals situation fourth apparently central refusal accord finality sentences faulty characterization sentencing phase criminal prosecution although acknowledges double jeopardy guarantee least part directed protecting individual government oppression undue embarrassment expense anxiety insecurity green reaches startling conclusion limited appeal ante exposes defendant minimal incremental embarrassment anxiety determination innocence guilt already behind ibid believe fundamentally misunderstands import defendant sentencing proceeding suggest defendants concerned much time must spend prison whether record shows conviction say ordeal trial important obviously conviction predicate time prison clearly defendant breathe sigh relief found guilty indeed overwhelming number criminal defendants willing enter plea bargains order keep time prison brief possible surely believe sentencing phase merely incidental defendants suffer acute anxiety convicted defendant sentencing phase certainly critical phase pretend otherwise reason holding valid ignore reality contrary view rests circular notion defendant expectation finality sentence government appeal pursuant concluded time appeal expired ante statute increases prolongs defendant anxiety alleviates conditioning expectations logically extended reasoning lead conclusion double jeopardy clause permits government appeals verdicts acquittal purpose insulating verdict acquittal proceedings least part concern defendants subjected government oppression congress dispose objection statute authorizing government appeal verdicts acquittal view statute charge defendant knowledge provisions thus eradicate expectation finality acquittal finally attempts differentiate finality acquittals finality sentences reliance north carolina pearce swisher brady neither decision supports result pearce allowed imposition longer sentence upon retrial following appellate reversal defendant conviction holding rested ultimately upon premise original conviction defendant behest wholly nullified slate wiped clean pearce allowed imposition longer sentence sentencing followed retrial rather appeal fact retrial gives trial power impose new sentence statutory maximum pearce observed difference increases existing sentences imposition wholly new sentences wholly new trials since government argue entitled new trial pearce provides support enhancement already existing sentence appeal reliance swisher brady supra similarly misplaced upheld maryland rule allowing juvenile judges set aside proposed findings recommendations masters hold de novo proceedings ultimately lead harsher result juveniles swisher critically different case master maryland law authority adjudicate facts impose sentence merely transmit results investigation trial judge latter review contrast federal district judge full power conduct trial conclusion guilt innocence impose final sentence upon defendant convicted merely provides government appellate rights convert judge imposition sentence mere recommendation iii demonstrated basis differentiating finality acquittals finality sentences submit punishment enhanced appellate unconstitutional multiple punishment conclude otherwise create exception basic double jeopardy protection carried logical conclusion might prevent congress double jeopardy grounds authorizing government appeal verdicts acquittal result plainly impermissible double jeopardy clause therefore dissent section pertinent part review sentence record sentencing may taken defendant appeals review sentence shall include review whether procedure employed lawful findings made clearly erroneous sentencing discretion abused appeals review sentence may considering record including entire presentence report information submitted trial felony sentencing hearing findings reasons sentencing affirm sentence impose direct imposition sentence sentencing originally imposed remand sentencing proceedings imposition sentence except sentence may made severe review sentence taken hearing may appeal decisions criminal case authorized statute scott sanges shall person subject offense twice put jeopardy life limb amdt view double jeopardy protection multiple punishments sentence may increased technically correct sentence imposed distinguish correction technically improper sentence always allowed see bozza dismisses significance benz cited ex parte lange wall present precise issue according benz gratuitously ante opined true lange raised issue somewhat different benz lange decide question unconstitutional multiple punishment benz citation lange entirely appropriate finality accorded sentences recognized contexts berman sentence appealable defendant notwithstanding suspension execution final judgment criminal case means sentence sentence judgment see corey suggests law attaches particular significance acquittal ante quoting scott necessarily afford absolute finality jury verdict acquittal matter erroneous decision ante quoting burks emphasis original see fong foo directed verdict acquittal trial judge middle jury trial entitled finality unreviewable appeal even though based upon egregiously erroneous foundation explains part result reached wilson allowed appellate reinstate guilty verdict nullified trial judge dismissal indictment wilson involved correction error law reinstatement already existing fact adjudication however fact adjudication appeals reinstate purpose appeal increase defendant sentence appellate make fact determination judgment defendant proper sentence another purpose double jeopardy clause prevent enhancing possibility even though innocent defendant may found guilty green similar analysis applies respect sentencing repeated attempts sentencing likely produce unjustifiably harsh sentence repeated trials likely result unwarranted guilty verdict instances government seeks second opportunity present evidence presented first instance burks supra see appeals may remand sentencing proceedings imposition sentence months ending june convictions district courts guilty plea plea nolo contendere annual report director administrative office courts view might double jeopardy bar government appeal sentence meted pursuant guilty plea defendants might bargain prosecutors latter appellate rights possibility irrelevant determining double jeopardy consequences appeal sentence imposed pursuant plea bargain course acknowledges verdicts acquittal appealable finality also accorded acquittals protect retrials leading erroneous guilty verdicts see supra reason allowing retrials following reversal convictions rests legitimate concern sound administration justice corresponding right accused given fair trial societal interest punishing one whose guilt clear obtained trial high price indeed society pay every accused granted immunity punishment defect sufficient constitute reversible error proceedings leading conviction tateo appeals sentences government pursuant implicate considerations identified tateo section authorizes appeals sentences government view simply low indeed noted respondent sentenced years imprisonment already begun serving sentence possibility therefore respondent granted immunity punishment moreover swisher evidence introduced proceeding master terminated unless juvenile consented introduction additional evidence contrast contemplates additional evidentiary proceedings connection appellate review sentences see nn supra similarly subsequent fact adjudication appeals district remand evidentiary hearing pursuant akin unconstitutional second trial following verdict acquittal view double jeopardy bar imposition additional punishment appellate defendant completed service sentence imposed trial although outcome contemplated presently drafted presumably violate due process event justice stevens dissenting join justice brennan dissent also note neither today opinion north carolina pearce adequately responded justice harlan powerful analysis double jeopardy issue case concurring part dissenting part purported response pearce although rationale allowing severe punishment retrial variously verbalized rests ultimately upon premise original conviction defendant behest wholly nullified clearly application question whether severe sentence may imposed prosecutor behest original conviction nullified straightforward analysis justice harlan worthy emphasis every consideration enunciated support decision green applies equal force situation bar instance defendant subjected risk receiving maximum punishment determined legal process receive specified punishment less maximum see concept fiction implicit acquittal greater offense applies equally greater sentence case determined former trial defendant offense certain limited degree badness gravity therefore merited certain limited punishment matter policy practicality imposition increased sentence retrial consequences whether effected guise increase degree offense augmentation punishment factors render one route forbidden permissible double jeopardy clause provision comprehend sentences distinguished offenses long established prisoner commences service sentence clause prevents vacating sentence imposing greater one see benz ex parte lange wall agree justice brennan written today well justice harlan wrote respectfully dissent