recognizing the “general rule — premised on double jeopardy concerns — that, once a defendant begins serving a sentence, the sentence may not lawfully be increased”
How later courts described this case
- recognizing the “general rule — premised on double jeopardy concerns — that, once a defendant begins serving a sentence, the sentence may not lawfully be increased”
- noting the “general rule—premised on double jeopardy concerns—that, once a defendant begins serving a sentence, the sentence may not lawfully be increased”
- affirming trial court’s correction of defendant’s illegal five-to-fifteen month sentence to a proper five-to-fifteen year sentence
Written by the judges who cited it.
The opinion
FARRELL, Associate Judge,
concurring:
“[Njeither the Double jeopardy Clause nor any other constitutional provision exists to provide unjustified windfalls.” Jones v. Thomas, 491 U.S. 376, 387 , 109 S.Ct. 2522, 2529 , 105 L.Ed.2d 322 (1989). At the same time, “[djouble jeopardy is an area of the law filled with technical rules, and the protections it affords defendants might at times be perceived as technicalities.” Id.; see also id. at 396, 109 S.Ct. at 2533 (Scalia, J., with whom three other Justices join, dissenting) (“The Double Jeopardy Clause is and has always been, not a provision designed to assure reason and justice in the particular case, but the embodiment of technical, prophylactic rules that require the Government to turn square comers.”). In this case, the government can argue with considerable plausibility that our holding yields a “windfall.” There can be no doubt that the trial judge reduced appellant’s sentence in the mistaken belief that the government was not opposing the motion to reduce. The judge reduced the sentence on *587 June 5 expressly noting that the motion was unopposed. The next day the government filed its opposition and, on June 7, moved to reconsider the reduction order, stating that it had not received the order until that day, had previously (without specifying a date) informed chambers that it would be opposing, and had not filed its opposition earlier only because it was awaiting preparation of the transcript of sentencing. That same day (June 7) the trial judge rescinded the reduction order “[flor good cause” and stated that the motion to reduce would be “considered along with the government’s opposition.” There seems not the slightest question that if the judge knew of the government’s intent to oppose the reduction, he would not have acted on June 5 but instead waited for its response. The judge will be surprised, to say the least, to learn that when his understanding of the true state of affairs was corrected, and he acted in conformity therewith, he violated double jeopardy.
Still another technical feature of our holding is apparent from application of the governing standard: whether appellant had a legitimate expectation of finality in the reduced sentence once it was entered. United States v. DiFrancesco, 449 U.S. 117, 137 , 101 S.Ct. 426, 437-38 , 66 L.Ed.2d 328 (1980). As appellant’s counsel acknowledged at argument, appellant probably did not even know his sentence had been reduced until learning, simultaneously, of the order rescinding it. His actual expectation of finality in the reduction was therefore probably zero. This contrasts with the normal case in which a double jeopardy argument of this sort is made — where the defendant is present at sentencing, is told his sentence, and begins serving it with the expectation that, absent legal error, it will not be increased.
Technical or not, however, our holding follows from the principles the court enunciates. The legitimate expectation of finality that controls must be an objective standard: would a defendant knowing the sentenced imposed (or as reduced) reasonably expect it to be final? His actual knowledge is thus immaterial; ascertaining when a defendant learned of the reduction in a case such as this would be an impractical task. Moreover, as Judge Ferren points out, the government’s “mistake of fact” gloss on the finality standard is sweeping: a judge, for example, who misread the presentence report, thinking the defendant had one instead of three prior convictions, could recall the defendant and increase the sentence well after he had begun serving it Further, the result of the order rescinding the reduction here was to leave appellant in suspense for five months while the judge reconsidered the matter. “One of the interests protected by constitutional finality is that of the defendant to be free from being compelled to ‘live in a continuing state of anxiety and insecurity.’” United States v. Fogel, 264 U.S.App. D.C. 292, 303, 829 F.2d 77, 88 (1987) (quoting Green v. United States, 355 U.S. 184, 187 , 78 S.Ct. 221, 223 , 2 L.Ed.2d 199 (1957)). Finally, the government can easily prevent mishaps such as occurred here by giving the trial judge timely written notice of its intent to file an opposition in the near future.