# Lockhart v. Nelson

Supreme Court of the United States
488 U.S. 33
LOCKHART, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION v. NELSON
Certiorari to the United States Court of Appeals for the Eighth Circuit
No. 87-1277. Argued: Oct. 3, 1988 --- Decided: Nov. 14, 1988

## Dissenting Opinion

    Marshall
Arkansas' habitual criminal statute provides that a defendant who is convicted of a class B felony may be sentenced to an enhanced term of imprisonment if the State proves beyond a reasonable doubt, at a separate sentencing hearing, that he has at least four prior felony convictions. At respondent's sentencing hearing following his guilty plea to a class B felony, the State introduced certified copies of four prior felony convictions, one of which, unbeknownst to the prosecutor, had been pardoned by the Governor. The case was submitted to the jury, which found that the State had met its burden of proving four prior felony convictions and imposed an enhanced sentence. Several years later, respondent sought a writ of habeas corpus in the United States District Court, contending that the enhanced sentence was invalid because one of the convictions used to support it had been pardoned. The District Court determined that the conviction in question had in fact been pardoned and set aside the enhanced sentence. The District Court then held, in reliance on Burks v. United States, 437 U.S. 1 (1978), that the Double Jeopardy Clause prohibited the State from attempting to resentence respondent as a habitual offender on the basis of another prior conviction not offered or admitted at the initial sentencing hearing. The Court of Appeals affirmed, reasoning that the pardoned conviction was inadmissible under state law, and that the Double Jeopardy Clause forbade retrial because the remaining evidence adduced at trial was legally insufficient to sustain the jury's verdict of enhancement.
Held: When a reviewing court determines that a defendant's conviction must be set aside because certain evidence was erroneously admitted against him, and further finds that once that evidence is discounted, there is insufficient evidence to support the conviction, the Double Jeopardy Clause does not forbid his retrial so long as the sum of the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict. The general rule is that the Double Jeopardy Clause does not preclude the retrial of a defendant who succeeds in getting his conviction set aside for such "trial errors" as the incorrect receipt or rejection of evidence. The Burks exception to that rule is based on the view that a reversal for [p34] evidentiary insufficiency is the functional equivalent of a trial court's granting a judgment of acquittal at the close of all the evidence. Because a trial court in passing on such a motion considers all of the evidence it has admitted, it must be this same quantum of evidence which is considered in deciding whether retrial is permissible under the Double Jeopardy Clause. Permitting retrial in this instance is not the sort of oppression at which the Double Jeopardy Clause is aimed, but simply affords the defendant an opportunity to obtain a fair adjudication of his guilt free from error. Pp. 289–292.
828 F.2d 446, reversed.
Rehnquist, C.J., delivered the opinion of the Court, in which White, Stevens, O'Connor, Scalia, and Kennedy, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined, post, p. 42.
J. Steven Clark, Attorney General of Arkansas, argued the cause for petitioner. With him on the briefs was Clint Miller, Assistant Attorney General.
John Wesley Hall, Jr., by appointment of the Court, 485 U.S. 956, argued the cause and filed a brief for respondent.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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