north carolina pearce argued february decided june together simpson warden rice certiorari appeals fifth circuit cases respondent convicted crime sentenced prison term original conviction set aside proceeding constitutional error several years later retrial respondent convicted sentenced sentence added time respondent served amounted longer total sentence originally imposed respondent received longer sentence credit given time already served neither case justification given imposition longer sentence respondents sought habeas corpus relief district courts instance held longer sentence retrial unconstitutional courts appeals affirmed held basic fifth amendment guarantee double jeopardy enforceable fourteenth amendment benton maryland post violated punishment already exacted offense fully credited imposing new sentence offense pp absolute constitutional bar imposing severe sentence reconviction pp guarantee double jeopardy restrict length sentence upon reconviction power impose whatever sentence legally authorized corollary power retry defendant whose conviction set aside error previous proceeding pp imposition severe sentence upon retrial violate equal protection clause fourteenth amendment since invidious classification successfully seeking new trials pp due process law requires vindictiveness defendant successfully attacked first conviction must play part sentence receives new trial defendant freed apprehension retaliatory motivation part sentencing judge accordingly reasons imposition retrial severe sentence must affirmatively appear record must based objective information concerning defendant identifiable conduct original sentencing proceeding pp andrew vanore argued cause petitioners brief thomas wade bruton attorney general north carolina joined adopted attorneys general respective follows macdonald gallion alabama david buckson delaware john breckinridge kentucky jack gremillion louisiana james erwin maine joe patterson mississippi forrest anderson montana clarence meyer nebraska arthur sills new jersey william sennett pennsylvania herbert desimone rhode island daniel mcleod south carolina george mccanless tennessee crawford martin texas bronson lafollette wisconsin james barrett wyoming paul abbate attorney general territory guam paul gish assistant attorney general alabama argued cause petitioner brief macdonald gallion attorney general larry sitton appointment argued cause filed brief respondent thomas lawson argued cause respondent brief oakley melton appointment robert londerholm attorney general edward collister assistant attorney general filed brief state kansas amicus curiae william van alstyne melvin wulf filed brief american civil liberties union et al amici curiae cases justice stewart delivered opinion behest defendant criminal conviction set aside new trial ordered extent constitution limit imposition harsher sentence conviction upon retrial question presented two cases respondent pearce convicted north carolina upon charge assault intent commit rape trial judge sentenced prison term years several years later initiated state proceeding culminated reversal conviction north carolina upon ground involuntary confession unconstitutionally admitted evidence retried convicted sentenced trial judge prison term added time pearce already spent prison parties agree amounted longer total sentence originally imposed conviction sentence affirmed appeal pearce began habeas corpus proceeding district eastern district north carolina held upon authority recent fourth circuit decision patton north carolina cert denied longer sentence imposed upon retrial unconstitutional void upon failure state resentence pearce within days federal ordered release order affirmed appeals fourth circuit brief per curiam judgment citing patton decision granted certiorari respondent rice pleaded guilty alabama trial four separate charges burglary sentenced prison terms aggregating years two years later judgments set aside state coram nobis proceeding upon ground rice accorded constitutional right counsel see gideon wainwright retried upon three charges convicted sentenced prison terms aggregating years credit given time spent prison original judgments brought habeas corpus proceeding district middle district alabama alleging state trial acted unconstitutionally failing give credit time already served prison imposing grossly harsher sentences upon retrial district judge frank johnson agreed contentions stating believe constitutionally impermissible impose harsher sentence upon retrial recorded record legal justification judge johnson found rice denied due process law nder evidence case conclusion inescapable state alabama punishing petitioner rice exercised right review original sentences declared unconstitutional supp judgment district affirmed appeals fifth circuit basis judge johnson opinion granted certiorari problem us involves two related analytically separate issues one concerns constitutional limitations upon imposition severe punishment conviction offense upon retrial limited question whether computing new sentence constitution requires credit must given part original sentence already served second question presented pearce north carolina appears law defendant must given full credit time served previous sentence state stafford state paige state weaver event pearce given credit alabama law however seems reflect different view aaron state app ex parte merkes app respondent rice upon resentenced given credit two years already spent prison turn first limited aspect question us whether constitution requires computing sentence imposed conviction upon retrial credit must given time served original sentence consider broader question constitutional limitations may upon imposition severe sentence reconviction anything settled jurisprudence england america man twice lawfully punished offence never doubt rule entire complete protection party second punishment proposed facts statutory offence constitution designed much prevent criminal twice punished offence twice tried hold constitutional guarantee multiple punishments offense absolutely requires punishment already exacted must fully credited imposing sentence upon new conviction offense upon new trial defendant acquitted way years spent prison returned reconvicted years must returned subtracting whatever new sentence imposed ii although rationale part constitutional jurisprudence variously verbalized rests ultimately upon premise original conviction defendant behest wholly nullified slate wiped clean whatever punishment actually suffered first conviction premise course unmitigated fiction recognized part opinion far conviction goes part sentence yet served simple statement fact say slate wiped clean conviction set aside unexpired portion original sentence never served new trial may result acquittal result conviction say constitutional guarantee double jeopardy weight restricts imposition otherwise lawful single punishment offense question hold contrary cast doubt upon whole validity basic principle enunciated ball supra upon unbroken line decisions followed principle almost years think decisions entirely sound decline depart concept reflect say exists absolute constitutional bar imposition severe sentence upon retrial however end inquiry remains consideration impact due process clause fourteenth amendment hardly doubted flagrant violation fourteenth amendment state trial follow announced practice imposing heavier sentence upon every reconvicted defendant explicit purpose punishing defendant succeeded getting original conviction set aside cases us original conviction set aside constitutional error imposition punishment penalizing choose exercise constitutional rights patently unconstitutional jackson threat inherent existence punitive policy respect still prison serve chill exercise basic constitutional rights see also griffin california cf johnson avery even first conviction set aside nonconstitutional error imposition penalty upon defendant successfully pursued statutory right appeal collateral remedy less violation due process law new sentence enhanced punishment based upon reason flagrant violation rights defendant nichols without right put price appeal defendant exercise right appeal must free unfettered unfair use great power given determine sentence place defendant dilemma making unfree choice worcester commissioner see short app never held required establish avenues appellate review fundamental established avenues must kept free unreasoned distinctions impede open equal access courts griffin illinois douglas california lane brown draper washington rinaldi yeager due process law requires vindictiveness defendant successfully attacked first conviction must play part sentence receives new trial since fear vindictiveness may unconstitutionally deter defendant exercise right appeal collaterally attack first conviction due process also requires defendant freed apprehension retaliatory motivation part sentencing judge order assure absence motivation concluded whenever judge imposes severe sentence upon defendant new trial reasons must affirmatively appear reasons must based upon objective information concerning identifiable conduct part defendant occurring time original sentencing proceeding factual data upon increased sentence based must made part record constitutional legitimacy increased sentence may fully reviewed appeal dispose two cases us light conclusions judge johnson noted state alabama offers evidence attempting justify increase rice original sentences found shocking state alabama attempted explain justify increase rice punishment three cases threefold found conclusion inescapable state alabama punishing petitioner rice exercised right review situation dramatically clear nonetheless fact remains neither time increased sentence imposed upon pearce stage habeas corpus proceeding state offered reason justification sentence beyond naked power impose conclude cases us judgment affirmed ordered footnotes patton appeals fourth circuit held increasing patton punishment reversal initial conviction constitutes violation fourteenth amendment rights exacted unconstitutional condition exercise right fair trial arbitrarily denied equal protection law placed twice jeopardy punishment offense sentenced four years prison upon first count two years upon three counts sentences served consecutively sentenced prison term years first count years second count five years fourth count sentences served consecutively third count dropped upon motion prosecution apparently chief witness prosecution left state courts appeals reached conflicting results dealing basic problem presented addition fourth fifth circuit decisions review see marano cir coke cir starner russell cir white cir walsh cir newman rodriguez state courts also far unanimous although seem either considered problem imposed generally applicable statutory limits upon sentences retrial prohibited severe sentences upon retrial imposed original trial see people henderson cal people ali cal state turner state wolf state leonard intention give defendant sentence fifteen years state prison however appears records available prison department defendant served years months days flat gain time combined passing sentence case taking consideration time already served defendant judgment defendant confined state prison period eight years recent opinion alabama indicates state law require credit time served original sentence least extent total period imprisonment otherwise exceed absolute statutory maximum imposed offense question without credit defendant serving time beyond maximum fixed law offense charged indictment goolsby state see note twice jeopardy yale ball green nielsen ex parte lange wall benz sacco adams kennedy spoken terms imprisonment rule equally applicable fine actually paid upon first conviction new fine imposed upon reconviction decreased amount previously paid credit must course include time credited service first prison sentence good behavior etc situations even time served original sentence fully taken account judge still sentence defendant longer term prison originally imposed true respect cases us pearce case credit time previously served given see supra rice case credit two years served given even sentencing judge reached result reach simply sentencing rice years prison permissible alabama law since rice convicted three counts burglary count maximum sentence years imprisonment imposed code tit see stroud bryan forman tateo stroud defendant convicted murder sentenced life imprisonment reversal conviction defendant retried reconvicted offense sentenced death upheld conviction defendant claim constitutional right twice put jeopardy violated see also murphy massachusetts robinson affirming decision green applicability present problem green decision based upon double jeopardy provision guarantee retrial offense defendant acquitted cf king app government brief suggests vein mikado first sentence void appellant served sentence merely spent time penitentiary since imprisoned imprisoned different theories advanced support permissibility retrial greater importance conceptual abstractions employed explain ball principle implications principle 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 standpoint defendant least doubtful appellate courts zealous protecting effects improprieties trial pretrial stage knew reversal conviction put accused irrevocably beyond reach prosecution reality therefore practice retrial serves defendants rights well society interest tateo see van alstyne gideon wake harsher penalties successful criminal appellant yale note unconstitutional conditions harv rev existence retaliatory motivation course extremely difficult prove individual case data collected show increased sentences reconviction far rare see note constitutional law increased sentence denial credit retrial sustained traditional waiver theory duke touching bit evidence showing fear vindictive policy noted trial judge patton north carolina supp quoted letter recently received prisoner dear sir mecklenburg county jail chose knew sir defendant case set free serving months sentence served months tried probility receive heavier sentence know sir sentence first trile years know usuelly courts prosedure give larger sentence new trile granted guess discourage petitioners honor want new trile afraid time honor know tried help god knows apreceate please sir let state way prevent truly justice douglas justice marshall joins concurring although agree reach due process go view reason new trial granted conviction second time second penalty imposed exceed first penalty respect guarantee double jeopardy theory double jeopardy person need run gantlet gantlet risk range punishment state federal government imposes particular conduct may year years years life death risks maximum permissible punishment first tried risk faced need faced fact takes appeal waive constitutional defense former jeopardy second prosecution green green case defendant charged arson one count second count charged either murder carrying mandatory death sentence murder carrying maximum sentence life imprisonment jury found guilty arson murder verdict silent murder appealed conviction obtained reversal remand tried time convicted murder sentenced death hence complaint former jeopardy held guarantee double jeopardy applied defendant direct peril convicted punished first degree murder first trial forced run gantlet twice argued case different two different crimes different punishments provided statute one however matter semantics immaterial basic purpose constitutional provision double jeopardy whether legislature divides crime different degrees carrying different punishments allows jury fix different punishments crime people henderson cal traynor point view individual liberty risk getting one years specified conduct different degree risk green getting life imprisonment capital punishment specified conduct indeed matter well understood dissenters green practical matter basis human values scarcely possible distinguish case defendant convicted greater offense one convicted offense name previously convicted carries significantly different punishment namely death rather imprisonment frankfurter dissenting established early date fifth amendment designed prevent accused running risk double punishment ewell madison introduced first congress draft became double jeopardy clause read person shall subject except cases impeachment one punishment one trial offence emphasis supplied annals cong forbidding person shall subject offense twice put jeopardy life limb safeguard fifth amendment double punishment guarded repetition history punishing man offense already suffered punishment roberts frankfurter dissenting anything settled jurisprudence england america man twice lawfully punished offence though nice questions application rule cases act charged come within definition one statutory offence bring party within jurisdiction one never doubt entire complete protection party second punishment proposed facts statutory offence general rule judgments decrees orders within control term made rule confined civil cases applies criminal cases well provided punishment augmented ex parte lange wall additional citations omitted present case power exercised mitigate punishment increase thus brought within limitation distinction term may amend sentence mitigate punishment increase based upon ground lost control judgment latter case upon ground increase penalty subject defendant double punishment offense violation fifth amendment constitution basis decision ex parte lange supra emphasis supplied ban double jeopardy roots deep history occidental jurisprudence fear abhorrence governmental power try people twice conduct one oldest ideas found western civilization bartkus illinois black dissenting purposes several prevents state using criminal processes instrument harassment wear accused multitude cases accumulated trials abbate opinion brennan serves additional purpose precluding state following acquittal successively retrying defendant hope securing conviction vice procedure lies relitigating issue evidence two different juries man innocence guilt stake hope come different conclusion hoag new jersey warren dissenting harassment accused successive prosecutions declaration mistrial afford prosecution favorable opportunity convict examples jeopardy attaches downum finally prevents state following conviction retrying defendant hope securing greater penalty case presents instance prosecution allowed harass accused repeated trials convictions evidence achieves desired result capital verdict ciucci illinois douglas dissenting tried found guilty never tried offence manifestly danger jeopardy second time found guilty punishment legally follow second conviction real danger guarded constitution judgment rendered conviction sentence judgment executed criminal sentenced conviction another different punishment endure punishment second time constitutional restriction value argument seems us irresistible doubt constitution designed much prevent criminal twice punished offence twice tried ex parte lange supra benefit green support emerging favor broad double jeopardy rule protect federal state convicts held prison erroneous convictions sentences harsher resentencing following retrial technical argument applying rule follows particular penalty selected range penalties prescribed given offense penalty imposed upon defendant judge jury impliedly acquitting defendant greater penalty jury green impliedly acquitted accused greater degree offense van alstyne gideon wake harsher penalties successful criminal appellant yale minds rebel permitting sovereignty punish accused twice offense francis resweber opinion reed see also williams oklahoma read double jeopardy clause applying strict standard designed help equalize position government individual discourage abusive use awesome power society trial starts jeopardy attaches prosecution must stand fall performance trial policy bill rights make rare indeed occasions citizen offense required run gantlet twice risk judicial arbitrariness rests view constitution puts government gori douglas dissenting never held anything contrary stroud involved defendant received death penalty upon retrial successfully appealing sentence life imprisonment appears case argued theory defendant put twice jeopardy offense merely retried indictment first degree murder indication presented argument risk increased penalty retrial violates double jeopardy clause double punishment offense stroud thus stands proposition double jeopardy clause entitle defendant successfully attacks conviction absolute immunity reprosecution patton north carolina cir extent stroud stands anything contrary vitiated green supra people henderson cal cases involving matter increased sentencing upon retrial either ones matter parties raise robinson cir aff necessary decision fay noia state cases applied loose standard due process lieu uncompromising dictates double jeopardy clause palko connecticut francis resweber among federal courts agree increased sentencing upon retrial constitutes double jeopardy patton north carolina cir adams cir courts appeals found unnecessary resolve matter indicated properly presented prohibit increased sentencing violation ban double jeopardy compare walsh cir jack cir castle cir still circuits found double jeopardy clause unavailing permit increased sentencing whenever justified newly revealed evidence marano cir coke cir whenever supported standards rational sentencing absent intent penalize defendant seeking new trial white cir whenever considered appropriate sentencing judge short app starner russell cir newman rodriguez cir among governing standards similarly mixed increase sentence defendant show reflects intent punish seeking new trial one instance state white prohibit increased sentencing upon retrial rest state standards double jeopardy people henderson cal ground result chilling effect contrary rule right correct erroneously conducted initial trial state wolf state turner still others reached result either matter judicial policy state holmes state statute rush state ark evidently reasons double jeopardy prohibit increased sentencing except affirmatively justified newly developed evidence people mulier app people thiel app div state leonard although unwilling place ceiling sentencing retrial allow credit time already served tilghman culver based double jeopardy moore parole board based local statute state boles based due process equal protection gray hocker supp based equal protection hill holman supp based due process federal regime matter credit governed statute permit increased sentencing retrial without limit ex parte barnes app kohlfuss warden connecticut state prison bohannon district columbia mun app salisbury grimes state kneeskern iowa state morgan la state young hobbs state md moon state md hicks commonwealth mass sanders state miss commonwealth ex rel wallace burke super state squires go far deny credit new sentence time already served prison former one people starks mcdowell state ind state king neb morgan cox state meadows swaim held president commanding officer power return case increase sentence double jeopardy provisions fifth amendment applicable practice unconstitutional reid covert opinion black rely information developed initial trial gives government continuing criminal jurisdiction supplement case defendant far beyond date set original prosecution consider defendant whose sentence retrial enlarged antisocial acts committed prison increase sentence original offense wholly subsequent conduct indirectly hold criminally responsible conduct justice black concurring part dissenting part respondent pearce convicted north carolina assault intent rape sentenced serve years prison respondent rice pleaded guilty four charges burglary sentenced alabama serve total years served several years pearce granted new trial confession used held obtained violation constitutional right compelled witness rice conviction set aside although indigent provided lawyer time made guilty plea respondents retried convicted rice sentence increased years credit given time previously served pearce effect given sentence years since credit allowed time already served new sentence set eight years agree double jeopardy clause prohibits denial credit time already served also agree rejection respondents claims increased sentences violate double jeopardy equal protection clauses constitution settled correctly notes double jeopardy provision limit length sentence imposed upon reconviction invidious discrimination subjecting defendants prior convictions set aside punishment faced people never tried former convictions set aside must like others convicted sentenced according law trial judge normally conduct full inquiry background disposition prospects rehabilitation defendant order set appropriate sentence accordingly defendants denied equal protection state makes provision sentences generally permits penalty set retrials whatever penalty trial judge finds appropriate whether higher lower sentence originally set goes however hold flagrant violation due process state trial follow announced practice imposing heavier sentence upon every reconvicted defendant explicit purpose punishing defendant succeeded getting original conviction set aside ante means take state permit appeals criminal cases time make crime convicted defendant take win appeal plainly deny due process law opinion implies believes unfair practice first place enactment two statutes side side one encouraging granting appeals another making crime win appeal contrary idea government law create doubt ambiguity uncertainty making impossible citizens know one two conflicting laws follow thus violate one first principles due process due process moreover guarantee man tried convicted accordance valid laws land conviction valid laws statutory constitutional man denied due process constitutional right conviction set aside without deprived life liberty property result two reasons agree state law imposing punishment defendant taking permissible appeal criminal case violate due process clause supposed unfairness since law take effect state legislative enactment also state judicial decision also agree violate constitution judge impose higher penalty defendant solely taken legally permissible appeal basis plausible argument upholding judgment setting aside second sentence respondent rice since district judge found shocking state offered evidence show greatly increased rice punishment namely sentence four burglary charges first trial sentence three burglary charges second trial circumstances federal district judge appeared find fact sentencing judge increased rice sentence specific purpose punishing rice invoking lawfully granted remedies since distance ordinarily give finding benefit every doubt accept federal district judge conclusion state case attempted punish rice lawfully challenging conviction therefore reluctance affirm decision appeals case provides basis affirming judgment appeals case involving respondent pearce case line evidence support slightest inference trial judge wanted intended punish pearce seeking relief indeed record shows trial judge meticulously computed time pearce served jail order give full credit time justifies affirming release pearce language order assure absence motivation concluded whenever judge imposes severe sentence upon defendant new trial reasons must affirmatively appear reasons must based upon objective information concerning identifiable conduct part defendant occurring time original sentencing proceeding factual data upon increased sentence based must made part record constitutional legitimacy increased sentence may fully reviewed appeal ante doubt power congress enact legislation fourteenth amendment reads congress shall power enforce appropriate legislation provisions article apart possibility judicial action prompted impermissible motives particularly poor reason holding detailed rules procedure constitutionally binding every state federal prosecution danger improper motivation course ever present judge might impose specially severe penalty solely defendant race religion political views might impose specially severe penalty defendant exercised right counsel insisted trial jury even defendant refused admit guilt insisted particular kind trial instances additional punishment course reasons stated flagrantly unconstitutional never previously suggested order assure absence motivation matter constitutional law direct trial judges spell detail reasons setting particular sentence making reasons affirmatively appear basing reasons objective information concerning identifiable conduct ever previously suggested connection sentencing factual data must made part record contrary spelled detail williams new york reasons refusing subject sentencing process limitations might hamstring modern penological reforms today continued reaffirm decision see specht patterson many perfectly legitimate reasons judge might imposing higher sentence instance take case respondent rice without lawyer pleaded guilty four charges burglary received sentence years although shown record happened difficult see common knowledge prosecutors frequently trade defendants agree recommend low sentences return pleas guilty judges frequently accept agreements without carefully scrutinizing record defendant one needs little imagination infer rice original sentence result precisely practice explains first sentence fact full trial examination entire record trial judge concluded sentence called opinion today unfortunately think defendants throw stumbling blocks way making similar beneficial agreements future moreover opinion may hereafter cause judges impose heavier sentences defendants order preserve lawfully authorized discretion defendants win reversals original convictions firmly adhere williams principle leaving judges free exercise discretion sentencing accept finding fact made federal district judge higher sentence imposed respondent rice motivated constitutionally impermissible considerations go promulgate detailed rules procedure matter constitutional law since finding actually improper motivation reverse judgment appeals case reinstate second sentence imposed upon respondent pearce one last thought say nothing semantic difference view due process clause guarantees persons must tried pursuant constitution laws passed opposing view constitution grants judges power decide constitutionality basis concepts fairness justice legal heritage sniadach family finance ante harlan concurring case elsewhere see difference views comes nothing less difference constitution says means judges day day generation generation century century decide fairest best people deciding ambiguous law violates due process far cry holding law violates due process unfair shocking judge violates legal heritage due process criminal trial means trial independent judge lawfully selected jury defendant lawyer defendant wants one power issue compulsory process witnesses guarantees provided constitution valid laws passed pursuant see chambers florida toth quarles difference constitution written founders unwritten constitution formulated judges according ideas fairness basis therefore must dissent affirmance judgment case respondent pearce rice second trial one four charges originally pressed dropped tried remaining three time sentencing pearce second trial judge stated intention give defendant sentence fifteen years state prison however appears records available prison department defendant served years months days flat gain time combined passing sentence case taking consideration time already served defendant judgment defendant confined state prison period eight years mr cases judged entirely within traditional confines due process clause fourteenth amendment without difficulty find substantial agreement result reached however today benton maryland post held dissent double jeopardy clause fifth amendment made applicable fourteenth amendment due process clause usual practice adhere end term views expressed dissent term believe proceed important cases benton turned otherwise given benton view decision green dissented time points strongly conclusion also reached brother douglas ante double jeopardy clause fifth amendment governs issues presently decided accordingly join part opinion concur result reached part ii except one minor respect green supra held effect defendant convicted lesser offense included charged original indictment thereafter secures reversal may retried lesser included offense justice frankfurter observed dissent joined practical matter basis human values scarcely possible distinguish case defendant convicted greater offense one convicted offense name previously convicted carries significantly increased punishment 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 significantly perhaps case contrary rule place defendant considering whether appeal conviction incredible dilemma confront desperate choice decision whether appeal burdened consideration success followed retrial conviction might place far worse position remained silent suffered seemed unjust punishment terms green imposition severe sentence retrial matter pure chance rather result purposeful retaliation taken appeal renders choice less desperate 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 suggest otherwise view apparently conviction merely consequent sentence set aside either set aside defendant behest slate wiped clean ante double jeopardy clause presents bar imposition sentence greater originally imposed support proposition relies chiefly two cases stroud ball believe either cases provides adequate basis seemingly incongruous conclusion stroud supra held defendant received life sentence murder upon securing reversal conviction retried murder sentenced death however opinion explicitly advert question whether double jeopardy clause bars imposition increased punishment examination briefs case confirms doubt expressed appeals patton north carolina whether question squarely presented assuming stroud stood proposition majority attributes decision simply squared subsequent decision green see dissenting opinion people henderson cal rest solely ambiguous doubtful precedent however main point seems limit punishment retrial imposed former trial cast doubt upon whole validity basic principle enunciated ball progeny ante ball held simply defendant succeeds getting first conviction set aside may thereafter retried offense formerly convicted indeed fundamental doctrine criminal jurisprudence last undermine ball speak question punishment may imposed retrial entirely fail understand suggestion unless assumes ball must stand fall notion quote majority today original conviction defendant behest wholly nullified slate wiped clean ante relying conceptual fiction majority forgets green supra prohibits imposition increased punishment retrial precisely convictions usually set aside defendant behest spite fact supra defendant choice appeal erroneous conviction protected rule may placed jeopardy suffering greater punishment imposed first trial moreover exaltation form substance policy misconceives think essential principle ball different theories advanced support permissibility retrial greater importance conceptual abstractions employed explain ball principle implications principle 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 therefore conclude consistent fifth amendment defendant convicted sentenced particular punishment may retrial placed jeopardy receiving greater punishment first imposed double jeopardy clause held applicable benton maryland supra affirm judgment appeals vacate remand respondent pearce may finish serving first valid sentence see supra outright affirmance carry consequence relieving respondent pearce serving remaining months original state sentence see opinion ante basis whether result case governed due process double jeopardy interference state legitimate criminal processes therefore vacate judgment appeals fourth circuit remand case order may entered releasing pearce expiration first sentence cf peyton rowe prohibition enhanced punishment retrial course tend manner encourage frivolous appeals contrary rule discourage frivolous appeals except insofar discourages appeals appellant quandary clearly seen first trial conviction capital offense result sentence life imprisonment green supra indeed relies cases part opinion hold prisoner must afforded credit time served pursuant subsequently vacated sentence neither lange benz indicates principle prohibiting imposition enhanced sentence judgment conviction depends whether original sentence vacated prisoner application set aside sua sponte appears though clearly lange sentence set aside behest murphy massachusetts however indicated one successfully moves vacate sentence occupies posture sued writ error day first sentenced mere fact reason delay served portion erroneous sentence entitle assert twice punished thus concluded murphy sentence augmented also petitioner constitutionally entitled credit time served first sentence proves much today holds part opinion view neither conclusion survives green stroud pitched double jeopardy claim theory although constitutional prohibition prevent second trial reversal cases without reference sentence imposed preclude second trial upon reversal conviction capital case brief plaintiff error stroud argument enhanced sentence appears based solely nonconstitutional grounds see et seq fiction seem lead result even majority might difficulty reconciling double jeopardy clause prohibition multiple punishment consider situation defendant successfully vacates conviction retried convicted fully served sentence first imposed see street new york sibron new york ginsberg new york although sentence fully served defendant caused judgment vacated majority nullification principle seem allow judge impose new sentence imprisonment long new sentence increased sentence rather result failure credit defendant sentence completed new facts may consist misdeeds committed defendant since first trial rather prior misconduct subsequently discovered view alter outcome green double jeopardy cases subsequent misdeeds amount criminal violations defendant may properly tried punished amount something less uncertainty kinds noncriminal conduct may considered aggravation sentence retrial analytically seem thwart concerns protected green either event understand rational policy distinguishes defendant whose appeal successful one takes appeal whose sentence may consistent double jeopardy clause augmented see supra course nothing double jeopardy clause forbids prosecutor introducing new harmful evidence second trial order improve chances obtaining conviction lesser offense defendant previously convicted assure defendant receives full punishment imposed first trial justice white concurring part join opinion except view part authorize increased sentence retrial based objective identifiable factual data known trial judge time original sentencing proceeding