June 16, 1969.

395 U.S.

BALISTRIERI v. UNITED STATES.

ON PETITION FOR REHEARING.

No. 1070. Decided June 16, 1969.

Rehearing granted; 394 U. S. 985, vacated; certiorari granted; 403 F. 2d 472, vacated and remanded.

Edward Bennett Williams and Harold Ungar for petitioner.

Solicitor General Griswold for the United States.

PER CURIAM.

The petition for rehearing is granted and the order denying the petition for a writ of certiorari is vacated. The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the Seventh Circuit is vacated. The case is remanded to the United States District Court for the Southern District of Illinois for further proceedings in light of Alderman v. United States, 394 U. S. 165, and Giordano v. United States, 394 U. S. 310.

MR. JUSTICE BLACK dissents.

MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

Syllabus.

NORTH CAROLINA ET AL. v. PEARCE.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 413. Argued February 24, 1969.-Decided June 23, 1969.* In each of these cases the respondent was convicted of a crime and sentenced to a prison term; the original conviction was set aside in a post-conviction proceeding for constitutional error several years later; and on retrial the respondent was again convicted and sentenced. In No. 413, the sentence, when added to the time respondent had served, amounted to a longer total sentence than that originally imposed; and in No. 418, respondent received a longer sentence, with no credit being given for the time already served. In neither case was any justification given for imposition of the longer sentence. Respondents sought habeas corpus relief in the District Courts, which in each instance held the longer sentence on retrial unconstitutional. The Courts of Appeals affirmed. Held:

1. The basic Fifth Amendment guarantee against double jeopardy, which is enforceable against the States by the Fourteenth Amendment, Benton v. Maryland, post, p. 784, is violated when punishment already exacted for an offense is not fully "credited" in imposing a new sentence for the same offense. Pp. 717-719.

2. There is no absolute constitutional bar to imposing a more severe sentence on reconviction. Pp. 719-723.

(a) The guarantee against double jeopardy does not restrict the length of sentence upon reconviction, the power to impose whatever sentence is legally authorized being a corollary of the well-established power to retry a defendant whose conviction has been set aside for an error in the previous proceeding. Pp. 719-721.

(b) Imposition of a more severe sentence upon retrial does not violate the Equal Protection Clause of the Fourteenth Amendment, since there is no invidious "classification" of those successfully seeking new trials. Pp. 722-723.

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

3. Due process of law requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial and that a defendant be freed of any apprehension of retaliatory motivation on the part of the sentencing judge. Accordingly, the reasons for imposition after retrial of a more severe sentence must affirmatively appear in the record and must be based on objective information concerning the defendant's identifiable conduct after the original sentencing proceeding. Pp. 723-726. No. 413, 397 F. 2d 253, and No. 418, 396 F. 2d 499, affirmed.

Andrew A. Vanore, Jr., argued the cause for petitioners in No. 413. With him on the brief was Thomas Wade Bruton, Attorney General of North Carolina, joined in and adopted by the Attorneys General for their respective States as follows: MacDonald Gallion of Alabama, David P. Buckson of Delaware, John B. Breckinridge of Kentucky, Jack P. F. Gremillion of Louisiana, James S. Erwin of Maine, Joe T. Patterson of Mississippi, Forrest H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, Arthur J. Sills of New Jersey, William C. Sennett of Pennsylvania, Herbert F. DeSimone of Rhode Island, Daniel R. McLeod of South Carolina, George F. McCanless of Tennessee, Crawford C. Martin of Texas, Bronson C. LaFollette of Wisconsin, and James E. Barrett of Wyoming; and Paul J. Abbate, Attorney General, for the Territory of Guam. Paul T. Gish, Jr., Assistant Attorney General of Alabama, argued the cause for petitioner in No. 418. With him on the brief was MacDonald Gallion, Attorney General.

Larry B. Sitton, by appointment of the Court, 393 U. S. 973, argued the cause and filed a brief for respondent in No. 413. Thomas S. Lawson, Jr., argued the cause for respondent in No. 418. With him on the brief was Oakley Melton, Jr., by appointment of the Court, 393 U. S. 1010.

711

Opinion of the Court.

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

MR. JUSTICE STEWART delivered the opinion of the Court.

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

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

1 The approximate expiration date of the original sentence, assuming all allowances of time for good behavior, was November 13, 1969. The approximate expiration date of the new sentence, assuming all allowances of time for good behavior, was October 10, 1972.

Opinion of the Court.

2

395 U.S.

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

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

2 In Patton, the Court of Appeals for the Fourth Circuit had held that "increasing Patton's punishment after the reversal of his initial conviction constitutes a violation of his Fourteenth Amendment rights in that it exacted an unconstitutional condition to the exercise of his right to a fair trial, arbitrarily denied him the equal protection of the law, and placed him twice in jeopardy of punishment for the same offense." 381 F. 2d, at 646.

3 He was sentenced to four years in prison upon the first count, and two years upon each of the other three counts, the sentences to be served consecutively.

* He was sentenced to a prison term of 10 years on the first count, 10 years on the second count, and five years on the fourth count, the sentences to be served consecutively. The third count was dropped upon motion of the prosecution, apparently because the chief witness for the prosecution had left the State.