# Jones v. Thomas

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## Dissenting Opinions

    Brennan
    Scalia
United States Supreme Court
491 U.S. 376
Jones v. Thomas
No. 88-420 Argued: April 26, 1989. --- Decided: June 19, 1989
See 492 U.S. 932, 110 S.Ct. 12.
Syllabus
Respondent Thomas was convicted of both attempted robbery and first-degree felony murder arising out of the same incident and was sentenced to consecutive terms of 15 years for the attempted robbery and life imprisonment for the felony murder, with the 15-year sentence to run first. This conviction was affirmed on appeal. While Thomas' motion for postconviction relief was pending in Missouri trial court, the Governor commuted his 15-year sentence to time served. After the Missouri Supreme Court, in unrelated cases, held that the state legislature had not intended to allow separate punishments for both felony murder and the underlying felony, the trial court vacated the attempted robbery conviction and the corresponding sentence. The court left the felony-murder conviction in place, but credited the time served under the attempted robbery conviction against the life sentence. The State Court of Appeals affirmed the trial court's order and rejected Thomas' argument that, since he had completed his commuted sentence, his continued confinement under the longer sentence violated the double jeopardy prohibition against multiple sentences for the same offense. Thomas then sought a writ of habeas corpus in the Federal District Court. The court denied relief, ruling that Thomas had not suffered a double jeopardy violation because he had not been subjected to a greater punishment than intended by the legislature. The Court of Appeals reversed, holding that under this Court's decisions in Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, and In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608, once Thomas had satisfied one of the two sentences that could have been imposed by law, he could not be required to serve the other. It held further that Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187-which held that an unlawful conviction of felony murder and the underlying felony could be remedied by resentencing on a lesser included offense of nonfelony murder-was inapposite, since the prisoner in that case had not completed either of his sentences.
Held: The state-court remedy fully vindicated Thomas' double jeopardy rights. In the multiple punishments context, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535. As a result of the state trial court's ruling, Thomas now stands convicted of felony murder alone and his confinement under the single sentence imposed for that crime with credit for time already served is not double jeopardy. Thomas' reliance on Lange, supra, and Bradley, supra, is misplaced. Both cases involved alternative punishments that were prescribed by the legislature for a single criminal act, whereas the issue here involves separate sentences imposed for what the sentencing court thought to be separately punishable offenses, one far more serious than the other. Bradley also involved alternative sentences of two different types, fine and imprisonment. While it would not have been possible to "credit" a fine against time in prison, crediting time served under one sentence against the term of another has long been an accepted practice. Moreover, in a true alternative sentences case, it is difficult to say that the legislature intended one punishment over the other, for the legislature viewed each alternative as appropriate for some cases. Here, however, the legislature plainly intended that the person who committed murder during a felony would be convicted of felony murder or separately of the felony and nonfelony murder. It did not intend that an attempted robbery conviction would suffice as an alternative sanction for murder. Extension of Bradley beyond its facts would also lead to anomalous results since, had Thomas been sentenced t life imprisonment first, he would not have had a double jeopardy claim; and since he concedes that the unlawful imposition of concurrent sentences can be cured by vacating the shorter of the two even where it has been completed. Sentencing is not a game where a wrong move by a judge means immunity for the prisoner. Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 648-649, 91 L.Ed. 818. Pp. 380-387.
844 F.2d 1337 (CA8 1988), reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 387. SCALIA, J., filed a dissenting opinion, in which STEVENS, J., joined, and in which BRENNAN and MARSHALL, JJ., joined, except as to the footnote, post, p. 388.
Stephen D. Hawke, Jefferson City, Mo., for petitioner.
Springfield Baldwin, St. Louis, Mo., for respondent.
Justice KENNEDY delivered the opinion of the Court.

## Notes

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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