A basic purpose of the double jeopardy clause is to protect a defendant ''against a second prosecution for the same offense after conviction.'' 114 It is ''settled'' that ''no man can be twice lawfully punished for the same offense.'' 115 Of course, the defendant's interest in finality, which informs much of double jeopardy jurisprudence, is quite attenuated following conviction, and he will most likely appeal, whereas the prosecution will ordinarily be content with its judgment. 116 The situation involving reprosecution ordinarily arises, therefore, only in the context of successful defense appeals and controversies over punishment.
Reprosecution After Reversal on Defendant's Appeal .--Generally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, the assumption being made in the first case on the subject that, by appealing, a defendant has ''waived'' his objection to further prosecution by challenging the original conviction. 117 Although it has char acterized the ''waiver'' theory as ''totally unsound and indefensible,'' 118 the Court has been hesitant in formulating a new theory in maintaining the practice. 119
An exception to full application of the retrial rule exists, however, when defendant on trial for an offense is convicted of a lesser offense and succeeds in having that conviction set aside. Thus, in Green v. United States, 120 defendant had been placed on trial for first degree murder but convicted of second degree murder; the Court held that, following reversal of that conviction, he could not be tried again for first degree murder, although he certainly could be for second degree murder, on the theory that the first verdict was an implicit acquittal of the first degree murder charge. 121 Even though the Court thought the jury's action in the first trial was clearly erroneous, the double jeopardy clause required that the jury's implicit acquittal be respected. 122
Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States, 123 the appellate court set aside the defendant's conviction on the basis that the prosecution had failed to rebut defendant's proof of insanity. In directing that the defendant could not be retried, the Court observed that if the trial court ''had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense. . . . [I]t should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.'' 124 The policy underlying the clause of not allowing the prosecution to make repeated efforts to convict forecloses giving the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. On the other hand, if a reviewing court reverses a jury conviction because of its disagreement on the weight rather than the sufficiency of the evidence, retrial is permitted; the appellate court's decision does not mean that acquittal was the only proper course, hence the deference required for acquittals is not merited. 125 Also, the Burks rule does not bar reprosecution following a reversal based on erroneous admission of evidence, even if the remaining properly admitted evidence would be insufficient to convict. 126
Sentence Increases .--The double jeopardy clause protects against imposition of multiple punishment for the same offense. 127 The application of the principle leads, however, to a number of complexities. In a simple case, it was held that where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized one or the other but not both, it could not, after the fine had been paid and the defendant had entered his short term of confinement, recall the defendant and change its judgment by sentencing him to imprisonment only. 128 But the Court has held that the imposition of a sentence does not from the moment of imposition have the finality that a judgment of acquittal has. Thus, it has long been recognized that in the same term of court and before the defendant has begun serving the sentence the court may recall him and increase his sentence. 129 Moreover, a defendant who is retried after he is successful in overturning his first conviction is not protected by the double jeopardy clause against receiving a greater sentence upon his second conviction. 130 An exception exists with respect to capital punishment, the Court having held that government may not again seek the death penalty on retrial when on the first trial the jury had declined to impose a death sentence. 131
Applying and modifying these principles, the Court narrowly approved the constitutionality of a statutory provision for sentencing of ''dangerous special offenders,'' which authorized prosecution appeals of sentences and permitted the appellate court to affirm, reduce, or increase the sentence. 132 The Court held that the provision did not offend the double jeopardy clause. Sentences had never carried the finality that attached to acquittal, and its precedents indicated to the Court that imposition of a sentence less than the maximum was in no sense an ''acquittal'' of the higher sentence. Appeal resulted in no further trial or other proceedings to which a defendant might be subjected, only the imposition of a new sentence. An increase in a sentence would not constitute multiple punishment, the Court continued, inasmuch as it would be within the allowable sentence and the defendant could have no legitimate expectation of finality in the sentence as first given because the statutory scheme alerted him to the possibility of increase. Similarly upheld as within the allowable range of punishment contemplated by the legislature was a remedy for invalid multiple punishments under consecutive sentences: a shorter felony conviction was vacated, and time served was credited to the life sentence imposed for felony-murder. Even though the first sentence had been commuted and hence fully satisfied at the time the trial court revised the second sentence, the resulting punishment was ''no greater than the legislature intended,'' hence there was no double jeopardy violation. 133
[Footnote 116] A prosecutor dissatisfied with the punishment imposed upon the first conviction might seek another trial in order to obtain a greater sentence. Cf. Ciucci v. Illinois, 356 U.S. 571 (1958) (under due process clause, double jeopardy clause not then applying to States).
[Footnote 117] United States v. Ball, 163 U.S. 662 (1896). The English rule precluded a new trial in these circumstances, and circuit Justice Story adopted that view. United States v. Gilbert, 25 Fed. Cas. 1287 (No. 15,204) (C.C.D.Mass. 1834). The history is briefly surveyed in Justice Frankfurter's dissent in Green v. United States, 355 U.S. 184, 200 -05 (1957).
[Footnote 118] Green v. United States, 355 U.S. 184, 197 (1957). The more recent cases continue to reject a ''waiver'' theory. E.g., United States v. Dinitz, 424 U.S. 600, 609 n.11 (1976); United States v. Scott, 437 U.S. 82, 99 (1978).
[Footnote 119] Justice Holmes in dissent in Kepner v. United States, 195 U.S. 100, 134 (1904), rejected the ''waiver'' theory and propounded a theory of ''continuing jeopardy,'' which also continues to be rejected. See supra, p.1289 n.94. In some cases, a concept of ''election'' by the defendant has been suggested, United States v. Scott, 437 U.S. 82, 93 (1978); Jeffers v. United States, 432 U.S. 137, 152 -54 (1977), but it is not clear how this formulation might differentiate itself from ''waiver.'' Chief Justice Burger has suggested that ''probably a more satisfactory explanation'' for permissibility of retrial in this situation ''lies in analysis of the respective interests involved,'' Breed v. Jones, 421 U.S. 519, 533 -35 (1975), and a determination that on balance the interests of both prosecution and defense are well served by the rule. See United States v. Tateo, 377 U.S. 463, 466 (1964); Tibbs v. Florida, 457 U.S. 31, 39 -40 (1982).
[Footnote 121] The decision necessarily overruled Trono v. United States, 199 U.S. 521 (1905), although the Court purported to distinguish the decision. Green v. United States, 355 U.S. 184, 194 -97 (1957). See also Brantley v. Georgia, 217 U.S. 284 (1910) (no due process violation where defendant is convicted of higher offense on second trial).
[Footnote 122] See also Price v. Georgia, 398 U.S. 323 (1970). The defendant was tried for murder and was convicted of involuntary manslaughter. He obtained a reversal, was again tried for murder, and again convicted of involuntary manslaughter. Acknowledging that, after reversal, Price could have been tried for involuntary manslaughter, the Court nonetheless reversed the second conviction because he had been subjected to the hazard of twice being tried for murder, in violation of the double jeopardy clause, and the effect on the jury of the murder charge being pressed could have prejudiced him to the extent of the second conviction. But cf. Morris v. Mathews, 475 U.S. 237 (1986) (inadequate showing of prejudice resulting from reducing jeopardy-barred conviction for aggravated murder to non-jeopardy-barred conviction for first degree murder). ''To prevail in a case like this, the defendant must show that, but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different.'' Id. at 247.
[Footnote 124] Id. at 10-11. See also Greene v. Massey, 437 U.S. 19 (1978) (remanding for determination whether appellate majority had reversed for insufficient evidence or whether some of the majority had based decision on trial error); Hudson v. Louisiana, 450 U.S. 40 (1981) (Burks applies where appellate court finds some but insufficient evidence adduced, not only where it finds no evidence). Burks was distinguished in Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), holding that a defendant who had elected to undergo a bench trial with no appellate review but with right of trial de novo before a jury (and with appellate review available) could not bar trial de novo and reverse his bench trial conviction by asserting that the conviction had been based on insufficient evidence. The two-tiered system in effect gave the defendant two chances at acquittal; under those circumstances jeopardy was not terminated by completion of the first entirely optional stage.
[Footnote 125] Tibbs v. Florida, 457 U.S. 31 (1982). The decision was 5- to-4, the dissent arguing that weight and insufficiency determinations should be given identical double jeopardy clause treatment. Id. at 47 (Justices White, Brennan, Marshall, and Blackmun).
[Footnote 126] Lockhart v. Nelson, 488 U.S. 33 (1988) (state may reprosecute under habitual offender statute even though evidence of a prior conviction was improperly admitted; at retrial, state may attempt to establish other prior convictions as to which no proof was offered at prior trial).
[Footnote 127] Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874); North Carolina v. Pearce, 395 U.S. 711, 717 (1969). For the application of the principle in cases in which the same conduct has violated more than one criminal statute, see infra, pp.1297-99.
[Footnote 129] Bozza v. United States, 330 U.S. 160 (1947). See also Pollard v. United States, 352 U.S. 354, 359 -60 (1957) (imposition of prison sentence two years after court imposed an invalid sentence of probation approved). Dicta in some cases had cast doubt on the constitutionality of the practice. United States v. Benz, 282 U.S. 304, 307 (1931). However, United States v. DiFrancesco, 449 U.S. 117, 133 -36, 138-39 (1980), upholding a statutory provision allowing the United States to appeal a sentence imposed on a ''dangerous special offender,'' removes any doubt on that score. The Court there reserved decision on whether the government may appeal a sentence that the defendant has already begun to serve.
[Footnote 130] North Carolina v. Pearce, 395 U.S. 711, 719 -21 (1969). See also Chaffin v. Stynchcombe, 412 U.S. 17, 23 -24 (1973). The principle of implicit acquittal of an offense drawn from Green v. United States, 355 U.S. 184 (1957), does not similarly apply to create an implicit acquittal of a higher sentence. Pearce does hold that a defendant must be credited with the time served against his new sentence. Supra, 395 U.S. at 717 -19.
[Footnote 131] Bullington v. Missouri, 451 U.S. 430 (1981). Four Justices dissented. Id. at 447 (Justices Powell, White, Rehnquist, and Chief Justice Burger). The Court disapproved Stroud v. United States 251 U.S. 15 (1919), although formally distinguishing it. Bullington was followed in Arizona v. Rumsey, 467 U.S. 203 (1984), also involving a separate sentencing proceeding in which a life imprisonment sentence amounted to an acquittal on imposition of the death penalty. Rumsey was decided by 7-2 vote, with only Justices White and Rehnquist dissenting.