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After petitioner's first conviction was set aside on appeal, he was retried for the same offense, convicted, and given a more severe sentence than before. Following the grant of a petition for a writ of certiorari to consider the question of the retroactivity of North Carolina v. Pearce, 395 U.S. 711 , facts emerged from which it appears that there is no claim that the due process standards of that case have been violated here. The writ is therefore dismissed as improvidently granted.
250 Md. 468, 243 A. 2d 564, certiorari dismissed as improvidently granted.
Robert Anthony Jacques argued the cause and filed a brief for petitioner.
Edward F. Borgerding, Assistant Attorney General of Maryland, argued the cause for respondent. With him on the brief was Francis B. Burch, Attorney General.
The facts that have emerged since the grant of certiorari impel us to dismiss the writ as improvidently granted. As an appendix to its brief, the respondent has filed an affidavit of the judge who presided at the second trial, setting out in detail the reasons he imposed the 20-year prison sentence. Those reasons clearly include "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." But the dispositive development is that counsel for the petitioner has now made clear that there is no claim in this case that the due process standard of Pearce was violated. As counsel forthrightly stated in the course of oral argument, [398 U.S. 319, 321] "I have never contended that Judge Pugh was vindictive."
Accordingly, the writ is dismissed as improvidently granted.
MR. JUSTICE BLACK concurs in the result.
MR. JUSTICE HARLAN would reverse the judgment below based on his separate opinions in Desist v. United States, 394 U.S. 244, 256 , and in North Carolina v. Pearce, 395 U.S. 711, 744 .
MR. JUSTICE MARSHALL took no part in the decision of this case.
MR. JUSTICE DOUGLAS, dissenting.
Petitioner was first convicted of armed robbery in 1964 and received a 12-year sentence. On appeal the judgment was reversed. He was tried again in 1966 for armed robbery, again convicted, and this time received a sentence of 20 years. Under Md. Ann. Code, Art. 27, 488 (1967 Repl. Vol.), the maximum punishment possible was 20 years. As I stated in my separate opinion in North Carolina v. Pearce, 395 U.S. 711, 726 , 727: "He [the defendant] risks the maximum permissible punishment when first tried. That risk having been faced once need not be faced again." That is the respect I think is due the constitutional guarantee against double jeopardy.
I would reverse the judgment below. [398 U.S. 319, 322]
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