JIMMY JONES, PETITIONER V. LARRY P. THOMAS

   No. 88-420

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari to the United States Court of Appeals for the
Eighth Circuit

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      The Double Jeopardy Clause is not violated when an unauthorized
      multiple prison sentence is reduced to a lawful prison
      sentence even though the defendant has already completed
      a valid component of the multiple sentence
   Conclusion

                          QUESTION PRESENTED

   Respondent was convicted of attempted robbery and felony murder and
was sentenced to consecutive terms of 15 years' and life imprisonment,
respectively, for the two offenses.  His 15-year sentence, which he
began serving first, was commuted and was subsequently vacated by the
Missouri state courts on the ground that the Missouri legislature did
not intend to permit the imposition of consecutive sentences for
felony murder and the felony that served as the predicate for the
felony murder charge.  The question presented in this case is whether,
under these circumstance, the Double Jeopardy Clause required
respondent's life sentence to be vacated because he had already
completed the service of his 15-year sentence.

                     INTEREST OF THE UNITED STATES

   This case presents a recurring question regarding the reach of the
Double Jeopardy Clause.  In particular, it raises an issue as to how
courts should give effect to the Clause's prohibition against imposing
multiple punishments for the same offense.  Although this is a state
case, the court's resolution of the constitutional question in this
case will affect the federal criminal justice system as well as the
state systems.  Because the constitutional issue presented here, or
closely analogous issues, arise whenever a court vacates some portion
of a multiple-count sentence and either directs the disposition of the
remaining part of the sentence or remands the case for resentencing,
the United States has a substantial interest in the outcome of this
case.

                               STATEMENT

   1. On November 8, 1972, respondent attempted to rob an auto parts
store in St. Louis, Missouri.  During the course of the holdup,
respondent engaged in a gunfight with one of the store's customers.
Respondent shot and killed the customer.  After a jury trial in the
St. Louis Circuit Court, respondent was convicted of attempted robbery
and first-degree felony murder.  The felony murder charge was based on
the fact that the customer was killed during the commission of a
felony -- the attempted robbery of the auto parts store.  The trial
court sentenced respondent to consecutive terms of 15 years'
imprisonment on the attempted robbery count and life imprisonment on
the felony murder count.  The court directed that the 15-year sentence
be served first.  The Missouri Court of Appeals affirmed.  Pet. App.
A3;  State v. Thomas, 522 S.W.2d 74 (Mo. App. 1975).

   2. In 1977, respondent filed in state court a motion for
post-conviction relief, claiming that it was improper for the trial
court to impose separate, consecutive sentences for felony murder and
the underlying felony of attempted robbery.  In June 1981, while
respondent's motion for post-conviction relief was pending, the
Governor of Missouri commuted respondent's 15-year sentence for
attempted robbery.  Pet. App. A4.  At that time, respondent had served
approximately eight years of his 15-year sentence on the attempted
robbery charge.  Respondent remained in prison, however, because he
still had to serve the life sentence that was imposed on the felony
murder count.

   Following the commutation order, the state trial court granted in
part respondent's motion for post-conviction relief.  The court ruled
that the Missouri legislature "did not intend to allow separate and
cumulative punishments for felony-murder and the underlying felony
which produced the homicide." Pet. App. A70.  Accordingly, the court
vacated respondent's conviction and sentence for attempted robbery.
The court did not disturb respondent's life sentence for the
felony-murder conviction, but the court credited against respondent's
life sentence all the time respondent had served under the 15-year
sentence prior to the time that sentence was vacated.  Pet. App. A4,
A82-A83.

   The Missouri Court of Appeals affirmed the trial court's ruling.
Pet. App. A65-A72;  Thomas v. State, 665 S.W.2d 621 (Mo. Ct. App.
1983).  While agreeing that the trial court was correct in holding
that separate sentences could not lawfully be imposed for the two
offenses, respondent argued that the trial court had not granted him
the proper relief.  Under the Double Jeopardy Clause, he argued, he
was entitled to immediate release, because he had already served one
of the two sentences that had initially been imposed on him.  Because
he had completed serving the commuted 15-year sentence for attempted
robbery, respondent argued, it was constitutionally impermissible for
the state courts to vacate that sentence and require him to serve the
remainder of the life term that had been imposed on the felony murder
count.  Pet. App. A66-A67.

   The Missouri Court of Appeals rejected respondent's argument.  It
held that the Double Jeopardy Clause did not require that petitioner
be released, since one of the two sentences imposed on him was lawful,
and there was no justification for holding that the longer of the two
sentences was the one that must be vacated.  The court noted that
respondent was not prejudiced by the vacation of the sentence he had
already completed serving, because the entire period of respondent's
incarceration was being credited to the life sentence he was then
serving on the felony murder charge.  Pet. App. A70-A71.

   3. Respondent then filed a petition for a writ of habeas corpus in
the United States District Court for the Eastern District of Missouri.
 In his petition, respondent renewed his double jeopardy claim and
argued that he should be entitled to immediate release because he had
already completed serving one of the two sentences originally imposed
on him.  The district court denied relief.  Pet. App. A51-A54.  The
court held that respondent had not suffered a double jeopardy
violation because "he is not being subjected to greater punishment
than the legislature intended." Id. at A54.

   4. A divided three-judge panel of the Eighth Circuti reversed and
remanded.  Pet. App. A24-A50.  The panel majority concluded that as a
result of the commutation of respondent's sentence by the Governor of
Missouri, respondent completed serving his 15-year sentence for
attempted robbery on June 16, 1981.  Pet. App. A27-A29.  Citing this
Court's decisions in Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873),
and In re Bradley, 318 U.S. 50 (1943), the panel held that because
respondent had completed the 15-year sentence before the state court
vacated that sentence and ordered respondent to complete the life
sentence that was imposed on the felony murder count, the state
court's order violated the Double Jeopardy Clause.  Pet. App. A30-A37.
 Under Lange and Bradley, the panel concluded, once respondent had
completed one of the two sentences that could lawfully have been
imposed in the first instance, he could not be forced to serve any
portion of the other sentence, even if he were given credit toward his
life sentence for all the time he had served under the 15-year
sentence.  Pet. App. A36-A37.  /1/

   Judge Bowman dissented.  In his view, the constitutional
prohibition against multiple punishments for the same offense was not
violated, because respondent is serving "only the sentence imposed on
one of his two original convictions." Pet. App. A45.  Although the
State could not require him to serve both sentences, Judge Bowman
explained, the Double Jeopardy Clause "does not require that
(respondent) be given the choice of which of two
simultaneously-imposed prison sentences he is to serve when it
transpires that he cannot be made to serve both." Ibid.  The "extreme
hypertechnicality" of the panel's decision, Judge Bowman noted, is
illustrated by the fact that respondent would not have to be released
if the trial court had imposed concurrent, rather than consecutive
sentences on the two counts;  in that event, he would have to serve
the remainder of his life sentence, without benefitting from the
happenstance that the trial court ordered him to serve the 15-year
sentence first.  Pet. App. A48.

   5. The Eighth Circuit granted rehearing en banc and in a 5-4
decision ordered that the writ of habeas corpus be issued.  Pet. App.
A1-A14.  Like the panel, the en banc court concluded, first, that
respondent had completed serving his sentence for attempted robbery.
Id. at A7-A8.  The court then interpreted Ex parte Lange, supra, and
In re Bradley, supra, as standing for the proposition that a criminal
defendant may not be punished further after he completes the service
of a sentence that is one component of several "illegally imposed
multiple sentences" Pet. App. A12.  Accordingly, the court held that
the state court's order requiring respondent to complete the service
of his life sentence, even with credit for the period he had served
under the vacated 15-year sentence, violated the Double Jeopardy
Clause.  /2/

   The four dissenting judges stated that in their view, the Double
Jeopardy Clause does not require that respondent be released from
custody simply because he was deemed to have completed the sentence
that the trial court happened to have ordered him to serve first.  The
dissenting judges observed that, under the majority's view of the law,
respondent could be required to serve the life term for murder if the
judge had directed that sentence to be served first.  The dissent
concluded that "it is little short of preposterous that the sequence
in which the consecutive sentences were pronounced should provide a
basis for (respondent's) early release" (Pet. App. A20-A21).

                          SUMMARY OF ARGUMENT

   1. The Double Jeopardy Clause prohibits multiple punishments for
the same offense.  As this Court has held, that prohibition means only
that a defendant may not receive greater punishment than the
legislature intended for his crime.  Here, the Missouri courts ruled
that the Missouri legislature intended to authorize punishment only
for respondent's conviction for felony murder.  Accordingly, the trial
court reduced respondent's sentence to life imprisonment.  Under that
order respondent will not serve a greater sentence than the
legislature authorized.  Thus, respondent has not suffered
unconstitutional multiple punishments for the same offense.

   2. Respondent claims that the Double Jeopardy Clause establishes a
special rule for multiple sentences.  He asserts that, because he
initially received unauthorized multiple sentences, he must be
released since he has served one of the sentences even though it was
the shorter one.  That suggestion is not supported by any interest
protected by the Double Jeopardy Clause.  The sentencing court thought
that respondent deserved to be sentenced to a penalty of life plus 15
years' imprisonment.  The Missouri courts later determined that the
legislature did not intend to authorize a penalty greater than life
imprisonment.  The interests of the Double Jeopardy Clause were
satisfied, therefore, when the sentencing court reduced respondent's
prison sentence to life.

   3. This Court's decision in Ex parte Lange, 85 U.S. (18 Wall.) 163
(1873), does not support respondent.  The Court in that case held that
a defendant could not be fined and sentenced to prison where the
criminal statute authorized either punishment but not both.  As the
Court has made clear in more recent cases, Ex parte Lange stands for
the settled proposition that the Double Jeopardy Clause forbids
punishment greater than the legislature authorized.  The Missouri
courts did not violate the prohibition in this case.

   Nor should this Court's decision in In re Bradley, 318 U.S. 50
(1943), be read as supporting respondent's claim.  The Court held in
Bradley that a defendant could not be fined and sentenced to prison
where the statute allowed only one or the other punishment, even
though Bradley's money used to pay the fine was returned to him when
the judge learned of the error.  That decision is consistent with this
Court's later Double Jeopardy cases only if the Court believed that
Bradley was punished by paying the fine even though his money was
returned to him.  If Bradley is to remain good law, it must be
confined to its unusual context:  where a court simultaneously imposed
a fine and imprisonment for a crime that allowed only either penalty.
To export Bradley into other contexts would be inconsistent with this
Court's later opinions regarding the multiple-punishment component of
the Double Jeopardy Clause.

   Moreover, the technical rule of Bradley makes no sense when applied
to multiple prison terms.  If respondent had been directed to serve
his life sentence first, or concurrently with his attempted-robbery
sentence, he would have no plausible claim based on Bradley.  He would
simply have to serve the authorized term of life imprisonment that the
sentencing judge imposed.  Thus, In re Bradley should be limited to
its special circumstances and not be used to release respondent from
prison years before the trial court and the Missouri legislature
intended.

                               ARGUMENT

   THE DOUBLE JEOPARDY CLAUSE IS NOT VIOLATED WHEN AN AUTHORIZED
MULTIPLE PRISON SENTENCE IS REDUCED TO A LAWFUL PRISON SENTENCE EVEN
THOUGH THE DEFENDANT HAS ALREADY COMPLETED A VALID COMPONENT OF THE
MULTIPLE SENTENCE

   1. Respondent was tried once for his crime and convicted.  He has
not again been prosecuted for that crime.  Accordingly, this case does
not present any of the principal concerns of the Double Jeopardy
Clause -- i.e., the "embarrassment, anxiety, and expense" of multiple
trials and the concomitant increase in the "risk of an erroneous
conviction." Ohio v. Johnson, 467 U.S. 493, 499 (1984).  Instead, this
case raises the issue whether the Missouri courts violated the Double
Jeopardy Clause's prohibition "against multiple punishments for the
same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

   a. In Ohio v. Johnson, supra, this Court noted that the
constitutional prohibition against multiple punishments "is designed
to ensure that the sentencing discretion of courts is confined to the
limits established by the legislature" (467 U.S. at 499).
Accordingly, in Missouri v. Hunter, 459 U.S. 359, 366 (1983), the
Court ruled that "(w)ith respect to cumulative sentences imposed in a
single trial, the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the
legislature intended." See also Garrett v. United States, 471 U.S.
773, 793 (1985);  Whalen v. United States, 445 U.S. 684, 689 (1980).

   Respondent was convicted after one trial of felony murder and
attempted robbery.  The trial court sentenced him to a prison term
greater than life imprisonment.  The Missouri courts later held,
however, that the Missouri legislature intended to limit the
punishment of respondent to the penalty for felony murder -- i.e.,
life imprisonment.  Following the command of the Double Jeopardy
Clause, the trial court then vacated respondent's attempted robbery
conviction and reduced respondent's sentence to life imprisonment, the
sentence that had been imposed on the felony murder count.  Thus,
respondent has not and will not receive "greater punishment than the
legislature intended." Missouri v. Hunter, 459 U.S. at 366.  The
multiple-sentence component of the Double Jeopardy Clause "does no
more." Ibid.

   b. Respondent contends (Br. in Opp. 11-18) that, contrary to this
Court's statement in Missouri v. Hunter, the Double Jeopardy Clause
establishes another rule for multiple sentences.  He argues that the
Clause also means that, because he initially received unauthorized
multiple sentences, he must be released since he has served one of the
two sentences, even though it is the shorter one.

   Respondent's proposal does not follow from any interest protected
by the Double Jeopardy Clause.  The trial court lawfully sentenced
respondent to life imprisonment for felony murder, and respondent will
not be punished any more than that sentence requires.  The only error
in the original sentence -- the imposition of two sentences rather
than one -- was corrected by the order of the state court vacating the
15-year sentence for attempted robbery.  Because respondent has been
given full credit on his life sentence for the time he served under
the 15-year sentence, the vacated 15-year sentence will not have any
effect on the date of respondent's release from his life sentence.
See Pet. App. A70-A71.

   The state court order vacating respondent's 15-year sentence fully
protected the interest underlying the prohibition against multiple
punishments:  that a defendant should not be exposed to two penalties
for a single offense.  The sentencing judge believed that respondent
should be subject to a total penalty of life plus 15 years'
imprisonment.  The state courts concluded that the state legislature
did not intend to permit the penalty for conduct such as respondent's
to exceed life imprisonment.  It is therefore consistent with the
Double Jeopardy Clause to require respondent to serve the term of life
imprisonment, which both the sentencing court and the state
legislature believed was an appropriate penalty for respondent's
criminal conduct.

   2. Respondent relies on this Court's decisions in Ex parte Lange,
85 U.S. (18 Wall.), 163 (1873), and In re Bradley, 318 U.S. 50 (1943),
as support for his proposed rule governing multiple sentences.  Ex
parte Lange does not support respondent.  The decision in In re
Bradley, however, does provide him some support.  Nevertheless, as we
explain below, the decision in In re Bradley, lacked any support in
precedent at the time it was decided and is inconsistent with the
Court's more recent double jeopardy cases.  The double jeopardy
analysis In re Bradley, therefore, should not be extended to the
context of this case.

   a. The defendant in Ex parte Lange was convicted of a crime that
could be punished by a $200 fine or a one-year prison term but not
both.  See 85 U.S. at 164.  The trial court, however, sentenced Lange
to both the maximum fine and a one-year prison term.  Lange paid the
fine and then sought a writ of habeas corpus.  This Court ordered
Lange to be released.  Id. at 178.  The Court noted that the money
Lange used to pay his fine had "passed into the Treasury of the United
States" and could not be returned.  Id. at 175.  Thus, the Court
reasoned that any further punishment of Lange would be "in excess of
the authority of the court." Ibid.  When Lange paid his fine, the
Court stated, "the power of the court to punish further was gone." Id.
at 176.  Accordingly, Ex parte Lange stands for the proposition,
reiterated in such cases as Ohio v. Johnson and Missouri v. Hunter,
that the Double Jeopardy Clause forbids "greater punishment than the
legislature intended." Missouri v. Hunter, 459 U.S. at 366.

   That reading of Ex parte Lange is supported by this Court's later
cases.  For example, in North Carolina v. Pearce, 395 U.S. 711 (1969),
the Court cited Ex parte Lange for the proposition that the Double
Jeopardy Clause requires a State to credit a defendant with time
served on a conviction if that conviction is reversed on appeal and
the defendant is retried and again convicted.  The Court explained
(id. at 717-718) that, without such a credit, the defendant's ultimate
punishment might run afoul of the principle of Ex parte Lange that a
criminal sentence may not exceed the punishment authorized by the
legislature.  Similarly, in United States v. DiFrancesco, 449 U.S.
117, 139 (1980), the Court stated that "Ex parte Lange demonstrates
(that) a defendant may not receive a greater sentence than the
legislature has authorized." Accordingly, neither the holding of Ex
parte Lange nor this Court's interpretations of that case support
respondent's claim that Lange established a rule that a defendant must
be released from custody if he completes one component of an
unauthorized, multiple-component sentence.

   b. The defendant in In re Bradley was found guilty of contempt and
sentenced to six months' imprisonment and a $500 fine even though the
statute only allowed a fine or imprisonment.  See 318 U.S. at 51.
Bradley paid the fine.  The trial court then learned that the sentence
was erroneous.  The court therefore amended the sentence to delete the
fine and ordered the clerk to return Bradley's money.  Id. at 52.
Relying exclusively on Ex parte Lange, this Court held that Bradley
could not be imprisoned.  The Court stated:  "Since one valid
alternative provision of the original sentence has been satisfied, the
petitioner is entitled to be freed of further restraint." Ibid.

   The rule in Bradley is a highly technical one.  In light of the
fact that the fine was promptly returned to Bradley, it is difficult
to square the decision in that case with this Court's more recent
decisions holding that the double jeopardy bar against multiple
punishments is offended only if the court imposes a sentence greater
than the legislature intended.  Indeed, it would appear that in light
of the Court's more recent approach to the multiple punishment issue,
the decision in Bradley is supportable only if the Court believed that
Bradley was punished by paying the fine even though his money was
promptly returned to him.  If his payment of the fine constituted
punishment in that fashion, then any additional prison term would have
exceeded the court's statutory authority.  If Bradley is read in that
way, then it simply stands for the same proposition as Missouri v.
Hunter -- that the Double Jeopardy Clause forbids greater punishment
than is authorized by the legislature.

   If Bradley is to remain good law at all, it should be confined to
its unusual context:  where a court has simultaneously imposed a fine
and imprisonment for a crime for which the legislature has authorized
only one of those alternative penalties, but not both.  It should not
be applied where a court has imposed two terms of imprisonment for
what the court considers separate offenses, and it is later held that
only one offense was involved and thus only one term of imprisonment
was authorized.  /3/

   Because a fine and imprisonment are penalties of different
character, it often will not be clear which penalty the sentencing
court would have selected if it had known that it could impose only
one.  There may be some justification, therefore, to hold that if the
defendant has paid his fine, a court should not later be forced to
decide that the sentencing court would have preferred to have the
defendant serve his term of imprisonment rather than pay a fine.  /4/
Where the sentencing court has imposed two consecutive terms of
imprisonment, however, it is clear that the sentencing court would
have intended the defendant to serve at least the longer of the two
terms.  Where the intention of the sentencing court is so clear, it
does not make sense to give the defendant the windfall of a further
reduction in his sentence simply because the sentencing court happened
to have structured the sentences by having the defendant serve the
shorter one first, and simply because the defendant has completed the
shorter sentence before obtaining relief from the judgment against
him.  To uphold a double jeopardy claim in that context would be at
war with this Court's observation in Bozza v. United States, 330 U.S.
160, 166-167 (1947), that "(t)he Constitution does not require that
sentencing should be a game in which a wrong move by the judge means
immunity for the prisoner."

   The technical rule applied in In re Bradley can lead to nonsensical
results if applied in contexts such as the one in this case.  For
example, there is no indication that the trial judge in this case
thought that the sequence of respondent's original sentence (15 years'
imprisonment to be followed by a term of life imprisonment) was in any
way important.  /5/ If respondent had been directed to serve the life
sentence first, he would have been serving that sentence when the
trial court corrected his sentence.  In that case, respondent would
have had no plausible claim based on Bradley.

   The irrationality that would be produced by applying Bradley to a
case involving consecutive prison sentences is underscored even more
by noting what would have happened in this case if the sentencing
court had imposed concurrent rather than consecutive sentences on the
two counts on which respondent was convicted.  Suppose the court had
regarded respondent as less culpable and had imposed concurrent
sentences of 15 years' and life imprisonment, rather than making the
two sentences consecutive.  Suppose further that respondent's 15-year
sentence had been vacated after having been commuted, just as in this
case.  In that event, respondent would have to serve the remainder of
his life sentence, since even the Eighth Circuit has held that when a
court vacates one of two sentences, it is not required to vacate the
longer sentence simply because the defendant has completed serving the
shorter one.  Hardy v. United States, 292 F.2d 192, 194-195 (8th Cir.
1961);  see also United States v. Leather, 271 F.2d 80 (7th Cir.
1959), cert. denied, 363 U.S. 831 (1960).  Ironically, then, if
Bradley is applied in this context, respondent will be substantially
better off by having received consecutive sentences than he would have
been if the sentences had been concurrent.

   A further anomaly that would flow from applying Bradley to a case
involving multiple sentences of imprisonment is that everything turns
on whether the defendant has completed his first sentence or not.
Thus, if the state court had vacated respondent's 15-year sentence the
day before the Governor's commutation order became effective, the
court apparently would have been free, even under Bradley, to require
that respondent complete his life sentence on the felony murder count.
 Under the court of appeals' reasoning, however, a delay in the state
court's disposition until the day after the commutation order became
effective would bar the state court from adjusting respondent's
sentence to accord with the clear intention of the sentencing court.

   Nothing in the constitutional underpinnings of In re Bradley
requires that the criminal justice system endure such anomalous
results.  The decision in Bradley was based exclusively on Ex parte
Lange.  But as we explained above, Ex parte Lange held only that a
defendant may not be punished more severely than authorized by the
legislature.  Accordingly, In re Bradley lacked direct support in
precedent.  Nor was the holding in Bradley necessary in order to
uphold the policies underlying the ban on multiple punishment that has
been recognized as a component of the Double Jeopardy Clause.  Thus,
if the Court does not choose to overrule it altogether, it should
limit In re Bradley to its special circumstances and not apply to it
to release respondent from prison years before the trial court and the
Missouri legislature intended.

   Subsequent decisions of this Court regarding the role of the Double
Jeopardy Clause in governing sentencing matters do not justify the
broad reading that the court of appeals gave to In re Bradley.  In
Bozza v. United States, supra, for example, the defendant was
convicted of a crime that carried a mandatory sentence of a fine and
imprisonment.  330 U.S. at 165-166.  The trial court initially
sentenced the defendant to imprisonment only.  The court soon learned
of its error and resentenced the defendant by adding a fine to his
punishment.  Ibid.  This Court rejected the defendant's claim that the
court violated the Double Jeopardy Clause by correcting the sentence,
even though the result was to increase the sentence that the Court had
initially imposed.

   In United States v. DiFrancesco, 449 U.S. 117 (1981), the Court
relied on Bozza for the proposition "that a sentence does not have the
qualities of constitutional finality that attend an acquittal." Id. at
134.  The Court in DiFrancesco then stated that "(t)he Double Jeopardy
Clause does not provide the defendant with the right to know at any
specific moment in time what the exact limit of his punishment will
turn out to be." Id. at 137.  Accordingly, the Court held in
DiFrancesco that the Double Jeopardy Clause does not bar the
government from asking an appellate court to increase a sentence set
by a trial court even if the defendant has already started to serve
that sentence.  Id. at 138.  See also Pennsylvania v. Goldhammer, 474
U.S. 28 (1985).

   It is therefore settled that the Double Jeopardy Clause does not
prevent a sentence from being increased if the resultant sentence is
one authorized by the legislature.  That is true even where the
defendant has begun serving his sentence.  And there is no discernible
constitutional principle that would require a different result if the
defendant has not only begun serving his sentence, but has completed
serving some discrete component of it.  Thus, a broad reading of the
holding of In re Bradley -- that a multiple sentence may not be
reduced if a valid component has been served -- is inconsistent with
the Court's current view of double jeopardy principles.

   In United States v. Benz, 282 U.S. 304 (1931), the court held that
a trial court may reduce a sentence that is already being served.  The
Court in Benz then stated in dictum that a court may not increase a
sentence once it is imposed.  The Court cited Ex parte Lange for that
dictum.  Id. at 307.  Fifty years later, in United States v.
DiFrancesco, supra, the Court reexamined Benz and found that its
reliance on Ex parte Lange was misplaced.  See 449 U.S. at 138-139.
Hence, the Court "confine(d) the dictum in Benz to Lange's specific
context." Id. at 139.  In re Bradley, which similarly relied on an
unduly broad reading of Lange for its support, should likewise be
limited to its specific context.  It should not be generalized to
create a rule of double jeopardy that allows a defendant such as
respondent to go free years before the trial court and the legislature
intended.  If the judgment in this case is affirmed, respondent will
have served only eight years' imprisonment for conduct to which the
legislature assigned a penalty of life imprisonment, and for which the
sentencing court intended respondent to serve a life term plus 15
years.  The fact that the sentencing court could validly elect to
impose only one of those sentences does not justify the conclusion
that respondent must be released because he has served the shorter of
the two.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   BRIAN J. MARTIN

      Assistant to the Solicitor General

   FEBRUARY 1989

   /1/ Judge McMillian, who concurred in the panel's analysis of the
double jeopardy issue, disagreed with Judge Hanson, the author of the
plurality opinion, on the issue of remedy.  Judge Hanson concluded
that the State could cure the double jeopardy violation "by changing
the jeopardy-barred felony-murder conviction to a non-jeopardy-barred
lesser included offense" or by trying respondent for some lesser
included offense.  Pet. App. A39 & n.3.  Judge McMillian disagreed.
In his view, the only remedy for the double jeopardy violation was to
order respondent released.  Pet. App. A40-A41.

   /2/ With respect to the issue of remedy, the en banc court adopted
the position Judge McMillian had taken, dissenting in part from the
judgment of the panel.  The en banc court concluded that because
respondent had completed one of the two sentences that had been
imposed on him, the State could not remedy the Double Jeopardy
violation by substituting a conviction on a lesser included offense in
place of the felony murder conviction, or by retrying respondent on a
lesser included offense.  Pet. App. A13-A14.

   /3/ Multiple sentences for what is ultimately held to be a single
offense can arise in one of two ways.  The court can impose separate
sentences for separate statutory violations that are ultimately held
to constitute only a single offense, as in this case.  Or the court
can impose separate sentences for multiple alleged violations of a
single statute, and those multiple alleged violations can later be
held to constitute only a single unit of prosecution, supporting only
a single sentence.

   /4/ Obviously, once a defendant has served a sentence of
imprisonment, a court cannot decide that it would prefer that he pay a
fine instead, and then select the fine as the proper penalty.

   /5/ The court probably directed the attempted robbery sentence to
be served first because attempted robbery was charged in Count 1 of
the charging instrument.  See Br. in Opp. 23.