Larry P. Thomas v. Terry Morris

— denied, 311-12 cert.

-, 88 L.Ed.2d 893 suspi we conclude reasonable justify

cion existed to seizure of Pantazis’

shoulderbag.

Accordingly, we affirm the district court. THOMAS,

Larry Appellant, P.

Terry MORRIS, Appellee.

No. 85-1934. Appeals,

United States Court of

Eighth Circuit.

Submitted March 1986. April

Decided

Rehearing En Banc Granted 24,1987.*

June Baldwin, Louis, Mo.,

Springfield St. appellant. Perkins, Gen., Atty.

Patricia D. Asst. Jef- Mo., City, appellee. ferson BOWMAN, Before McMILLIAN and Judges, HANSON,* Senior Judge. District * Iowa, See sitting desig- and Southern Districts of ** nation. HANSON, The HONORABLE WILLIAM C. Unit- ed Judge States Senior District for the Northern

HANSON, Judge. court’s District vacation was credited toward the Senior remaining life sentence. The Missouri appeals the court’s dis- district Thomas Appeals of affirmed the circuit petition, corpus assert- of his habeas missal State, court’s decision. Thomas v. previ- vacation of ing that a trial court’s (Mo.App.1983). S.W.2d inadequate is an ously commuted sentence he then a jeopardy petition violation Thomas filed for a writ of for double alleges corpus pursuant He that his continued habeas federal court suffered. a related sentence sub- 28 U.S.C. 2254. He asserted that his confinement under § of the continued confinement under the jects him to further violation double life sen- of degree For the reasons discussed tence for the conviction first jeopardy clause. below, the district court’s deci- was unconstitutional under we reverse jeopardy remand in accordance with our clause. United and sion Magistrate Kingsland Robert issued a rec- opinion. ommendation that writ of habeas cor- I. pus granted. opinion It was the Magistrate “fully that because Thomas degree of first convicted Thomas was sentence, satisfied one the state court was felony-murder and of power to vacate the same without dangerous degree by means a the first petitioner imprison- serve and cause life jury trial in the deadly weapon ment the same conviction.” v. Thomas City of Louis. On St. Circuit Court Morris, C(5), slip op. 84-1760 No. at 25, 1973, to a May Thomas wаs sentenced 29, 1985). (E.D.Mo. March attempted fifteen-year sentence for the robbery, life a term of rejected by This recommendation was felony-murder. The sentences were States District Court for East United consecutively, begin to be served ordered 28,1985, in of Missouri on June ern District fifteen-year Appel ning sentence. "withthe Lim Stephen order the Honorable N. serving on began this sentence June lant baugh. peti The denied habeas court affirmed The convictions were tion, holding Jeopardy the “Double February Appeals on by the Missouri Court prevent sen does no more than Clause Thomas, 522 S.W.2d State pun tencing prescribing greater court (Mo.App.1975). legislature intended.” ishment than the Morris, C(5), slip affirmation, 84-1760 appellant No. Following this Thomas 28, 1985). (E.D.Mo. The court judgment op. at 3 June collaterally attacked thе Thomas being subject “not Thomas was filing Supreme Court Rule ruled that a Missouri legisla greater punishment The motion ed to 27.26 motion in state court. court, “the entire time intended” because initially by the state ture dismissed attempted robbery sentence Appeals served for later the Missouri Court but to his life on duly credited the was the dismissal and remanded vacated hear- murder conviction.” a new cause to the circuit 27, 1981, appellant’s ing. March attor- On court, appeal with this Thomas filed an motion ney Rule 27.26 amended the ordering judgment requesting to issue a adding double claim. district court to issue the United States corpus. appeal of habeas based Governor writ In June of then Missouri alleged violation appellant’s on Christopher S. Bond commuted claim that later, as well as fifteen-year year on outlinеd above One sentence. previous- court’s vacation the circuit circuit court vacated June post an ex commuted sentence acted as ly fifteen-year sentence and the conviction process the due held that facto law violation attempted robbery. The court amendment. the fourteenth clause of the combination does not indicate this court conviction record before murder conviction part of claim was post the ex facto All of clause. whether violated presented the district claim prior had served to the the habeas the time Thomas Larry Whereas Thomas ... was shall not consider ... therefore we convicted of the crime of ... ATTEMPT- it.

ED ROBBERY FIRST DEGREE BY DDW, I, ..., OF CHRISTO- MEANS H. BOND, PHER S. Governor the State analyzing Thomas’ step in claim first Missouri, by authority in me virtue fully if he had satisfied detеrmine is to good rea- and for and sufficient vested attempted for the fifteen-year sentence sons, hereby do commute the sentence of prior to the vacation of robbery conviction hereof, recipient mentioned to the above For, circuit court. if by the sentence 16, ending 1981. a term June not, from this court’s it is clear had he 12, signed commutation was on June The ruling v. United States in Holbrook There is no mention in the document 1981. right say had “the circuit court of either the conviction or sentences, consecutive of the two which appellant pursu- the life received imposed and both unex- contemporaneously it. ant to in order not to eliminated ecuted shall be difficult, light language It is punish- to ... double subject the defendant document, any to find contained this 649, (8th Cir.1943). ment.” appellee’s that the merit assertion com- satisfied, sentence was unless the of one sen- mutation was a substitution jeopardy violation. is no double there tence for the two sentences. The commu- deciding factor The determinative any tation lacks indication that fully the fif- Thomas had satisfied whether Instead, it refers to the at- case. legal effect of the is the teen-year sentence robbery the associ- tempted conviction and issued June of commutation fifteen-year unambig- ated sentence and that under Thomas asserts to a term uously commutes this sentence complet- he had of the commutation terms 16, “ending” on June serving fifteen-year sentence on ed assertion, appellee support of his prior 16, year to the vaca- June 1981—one a sen- points that the commutation of оut the sentence the circuit court. tion of change punishment of a tence is hand, Morris, on the other as- Appellee person condemned to “a which a has been Bond commuted serts that when Governor law, one. While this is the we less severe” changing merely the sentence helps appellee’s argu- see do not how fifteen punishment Thomas’ from States, 331 v. United ment. See Rawls a plus punishment severe life to a less Cir.1964); 21, Blagg, v. Lime F.2d Therefore, according only. (1939) (en life sentence 345 Mo. 131 S.W.2d Morris, fully completed the commutation, Thomas never banc). Thomas’ Under the the commu- fifteen-year sentence because fifteen-year sentence ended June merely signed tation substituted the days four after the Governor original two of life for the of “a less se- it. This was substitution original fifteen-year sentences. for the vere” sentence sentence, not have which otherwise would not make The district court below did 28, 1988. ended until June rulings legal effect of the any as to the law, commutation, assertion of apparently Beyond the false this bare under appellee position, signifi- way no in no hurts Thomas’ impression factor had that this theory supporting the however, no evidence presents this court Fortunately, cance. anything oth- means that the commutation copy of the com- complete has a true and fifteen- says i.e., that the er than what it relevant lan- mutation in the record. The — 16, 1981.1 on June year sentence ended guage of the commutation reads: completion of his sentence. after 9/12 1. The court notes the statute under which complet- commuted, after commuted 15-year Thomas’ sentence was Mo. Thomas’ sentence was Black, 1979), (1969) But see Love of his sentence. (repealed Rev.Stat. 6/12 § 216.355 (E.D.Mo.1984). Al- F.Supp. eligible for commutation would have made him theory fendant to both the maximum fine and only possible under which not to fulfilled punishment. held maximum term Thomas could be de- is to paid the sentence fendant the fine served days five a commuted sen argue that fulfillment of corpus his sentence before his habeas to the fulfillment of equal is not tence petition sentencing judge was heard. The is, how sentence. There non-commuted prior then entered order ever, proposition. authority for such a no resentencing judgment defendant law, Instead, “the commut Missouri under year jail date effect and the has same ed sentence resentencing. Id. at 164. prisoner same as is the stаtus of that once “the Court held originally had the sentence prisoner fully performed, completed, Cerny, 248 term.” State commuted punish- endured one of the alternative Reno, (Mo.1952); Parte S.W.2d prescribed the law ments which 66 Mo. offence,” authority of the court “to legally hold that Thomas Because we * at an end punish for that offence was *. he received for the the sentence satisfied exhausted; power The its further exer- robbery, court must now attempted * * prohibited. It cise was was error *.” the ‍​​‌‌‌‌​‌​​‌‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌‌​​‌​‍subse- question of whether address Id. at 176. and his quent of that sentence vacation explained necessity The for felony- confinement continued protection against punishment multiple jeop- convictionviolated murder follows: ardy clause. is For of what avail the constitutional

III. against trial if рrotection more than one against guarantee The any there can be number sentences separate of three constitutional consists Why pronounced verdict? is on the same protects against a protections. “It second that, having found once been tried and the same offense after ac- prosecution for again tried guilty, he can never for prose- quittal. protects against It second Manifestly it not the that offence? is for the same offense after convic- cution being danger jeopardy of a second or against multiple pun- protects And it tion. punishment It guilty. is the time found for the same offense.” North ishments legally con- follow second Pearce, 711, 717, 89 Carolina danger guarded real viction which is the 2072, 2076, (1969) S.Ct. if, against by But af- the Constitution. omitted). (footnotes rendered on the judgment ter has been conviction, judg- and the prong, the third This case involves criminal, he can be ment executed against multiple punishments. prohibition conviction to an- (18 Wall.) 163, again on that sentenced Lange, Parte or punishment, to (1873), to other and different the first case L.Ed.2d punishment a second pro- endure the same jeopardy clause hold that the double time, restriction multiple punishments for the same constitutional hibits spirit starting point any not its intent and offense, provides the value? Is and it as if a a case as much violated analysis. for in such our had, and on a second new trial been de- Lange, In the criminal statute punishment inflicted? a second conviction prescribed as fendant violated irresistible, argument seems to us The dol- more two hundred a fine of not that the Constitu- do not doubt and we one imрrisonment for not more than lars or designed prevent to as much wording tion was Notwithstanding year. punished being for twice de- criminal statute, the trial sentenced er, granted, had been because the commutation may speculate as the Governor’s to Thomas, only with whether the concern must be commuting be- our we do not reasons jeopardy-barred. remaining any life sentence discrepancy Rath- moment. lieve this being the same offence as from robbery twice crime, him for that tried for it. punish or it could him piggy-backing the attempted robbery on to a charge of homi- Id. at 173. convicting cide and him decision was Lange reaffirmed felony-murder. crime Bradley the Court Re however, did not have the authority pun- 87 L.Ed. 608 In Bradley ish him attempted robbery under both the Court faced a situation similar to alternatives of thе Missouri law. See Mor- Lange imposed which the trial court had gan, 612 S.W.2d at 1-2. both a fine and a term of Thomas received sentences only under a statute which under each of allowed one of alternatives, fully he has Bradley, alternatives. now satis- 318 U.S. at fied one of the sentences at on him Bradley 470-71. the trial attempted attempted robbery to return the fine that had conviction. fully paid under and Bradley, and amended the can no longer punished imprisonment. to consist of a term of under the alternative this, sentence. Recognizing Court ruled that since there the Missouri had been a full satisfaction court has attempted of one of the fully vacate the penalties law, alternative satisfied the at- sentence so may that it continue tempt subsequently punish amend the sentence him for the nullity was a Id. “Since one valid alterna- under the conviction. How- provision ever, tive sentence has under Lange, the court has no author- satisfied, petitioner been is entitled ity perform to maneuver, to this because once be freed of further restraint.” Id. one of punishments the alternative has been power satisfied the of the court “to position Thomas asserts that his is analo- punish for that offence was at an end.” gous to the in Lange defendants’ (18 Lange Wall.) at 176. Bradley because under Morgan, State v. (Mo.1981)(en banc), 612 S.W.2d 1 his con- States, The cases of Holbrook v. United ‍​​‌‌‌‌​‌​​‌‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌‌​​‌​‍victions for both and the un- (8th Cir.1943), 136 F.2d 649 and United derlying felony were a violation of the dou- Edick, 603 F.2d 772 jeopardy asserts, ble clause. two support holding. In both cases the sentences by were on him a court defendant was sentenced to two terms of only hаd the authority impose to one imprisonment, to consecutively, be served applicable sentences under the stat- under statutes that authorized one utes. imprisonment. term of distinguishing The factor between the two cases is the fact interpretation Thomas’ of State v. Mor- that in fully Edick the defendant had satis- gan is not Appellee at issue. acknowl- sentences, fied the first of the consecutive edges that the Missouri Appeals Court of while in Holbrook neither of the sentences holding correct in the double convic- fully Edick, had been satisfied. tion to abe violation of the jeopardy double 773; Holbrook, at 136 F.2d at clause 650. principles by set forth Missouri in Morgan. This up Circuit in held Holbrook to (Brief 5). for Appellee, page Thus, the the time legal there has been a satisfaction only issue is whether the trial court had the sentences, of one of the the court could authority to vacate the simply vacate either of the sentences to sentence after it had been satisfied as a remedy violation, ap- cure to the violation. plying any time served under the vacated position remaining Thomas’ analogous is to sentence to the sentence. that of the defendants’ in F.2d at Lange Bradley. they 650. “Since either situation court, The Missouri receiving in this proper had two be credit for the ways punish served, alternative they Thomas for the time can have no cause to attempted robbery. punish It could him complain, no matter may which sentence convicting aside, of the crime of long set so as there has been no Legislative ments the Branch intended to under the terms either legal satisfaction Id. imposed. Congress intended, judgment.” and conditions Where here, the cause was impose multiple punish- went on to hold as it did ” Lange Ex Parte be- parallel ments, “not imposition of such sentences does legal of” no satisfaction “there was cause not violate Constitution. Id. plain the sentences. either of (quoting Alber at 679 at that, if this decision implication of 333, 344, naz v. United satisfied, fully had been the sentences 1137, 1145, (1981)). 67 L.Ed.2d 275 vacating it to solve Furthermore, jeopardy violation would be violative demonstrates, Lange Parte a de- [a]s against multiple punishments prohibition may greater pun- fendant receive Lange Bradley. enunciated legislature had ishment than the autho- Edick, the first of the case in which problem rized. No double fulfilled, the Ninth had been the sentences in Ex Parte presented been would have jeopardy viola- held that the double Congress provided if that the could not be cured tion punishable offense there was both already sentence. 603 F.2d at satisfied fine and even analy- court, basing much of its 778. The multiple punishment. Holbrook, in- Lange, Bradley, sis on DiFrancesco, 449 U.S. at 101 S.Ct. at ordered the lower court vacate stead Id. at 777- remaining unfulfilled sentence. question of the Missouri whether intended, in such as Legislature situations in recent the Su- It is true that this, separate pun- to allow and cumulative Court, preme well as this has underlying and for ishments for protection expand hesitant been felony-murder has degree the first multiple in the area of against punishments by the Missouri Su- definitively answered In United States DiFran- sentencings. no. State v. preme The answer Court. cesco, the Court ruled that Constitu- “[t]he (Mo.1981) (en Morgan, 612 S.W.2d sеntencing require tion does not Olds, banc); see also State v. 603 S.W.2d game wrong in which a move should be banc). (en 501, (Mo.1980) the 510 pris- judge immunity for the by the means multiple punishments imposition of the was 135, 426, 117, 449 101 S.Ct. oner.” legislature greater punishment “a than the Bozza 436, (1980) (quoting 66 328 L.Ed.2d the a violation of intended” and States, 160, 166-67, 67 v. United 330 U.S. suf- just great as as that jeopardy clause 649, 645, (1947)). 818 And in 91 L.Ed. S.Ct. by defendants fered the Hunter, Missouri v. the Court held that Bradley. prohibition was multiple punishment the this, of the district court held subjecting Regardless a defendant not violated attempted robbery charge the punishments for the same conduct that because punishment the time served under was authorized vacated and where such was 368-69, 359, felony-murder legislature. 459 103 sen- credited the the was (1983). 679, tence, no violation appellant S.Ct. 74 suffered rights stated that: because was Court his constitutional subjected greater being punishment “not punishments are question of what [T]he This legislature intended.”2 constitutionally permissible is no differ- ignores Bradley. punish- statement question ent from the of what assertion, support the footnote for this support court As of its assertion the district holding Hunter that quotes from Missouri v. points court in the decision this to footnote Jeopardy Missouri, no more than Clause does 1319 n. "the Double Thompson sentencing prescribing prevent (8th Cir.1984). court from states that “con- footnote legislature greater punishment intend- underlying than the punishment viction and for both the noted, ‍​​‌‌‌‌​‌​​‌‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌‌​​‌​‍However, already Id. as we felony-murder ed.” would not violate the felony-murder for both against punishments." a defendant prohibition multiple Id. Bradley, court realized mistake IV. and, day on the same the fine Today’s decision any way does not paid, it to the court remitted the de- was Hardy holding of overrule the this court in subject in order to be able to fendant States, United (8th F.2d 192 Cir. imprisonment. 318 to the term of U.S. at 1961). That case dealt imposition with the 50-51, But, previously as 63 S.Ct. at thereby two concurrent sentences and is distinguishable out, from the pointed Supreme held situation in Court consecutive, case where the sentences were payment of the fine had satisfied that with one of the sentences fully satisfied. portion judgment. of the at S.Ct. Additionally, this court intends to follow And, judgment of the at 470. “as the court approach it has past taken in a full thus executed so as to be satis- curing multiple remedies to punishment vi penalties of one of the alternative faction way olations in a clearly ap “which most law, power of the was at proximates the intention of the district an end.” Id. at at 471. The at the time of the sentenc same is true here. Just as the trial court ing.” Gerberding v. United Bradley jeop- could not cure the double Cir.1973). However, F.2d ardy by vacating the violation satisfied cure must constitutional. giving judgment and the defendant back end, we To this believe the money, the trial court here cannot cure City may St. Louis ade- have an vacating similar violation satisfied quate multiple cure to the giving appellant sentence and back this problem setting other than Thomas free. time. Mathews, See Morris v. 89 L.Ed.2d 187 Thus, we reverse the district court’s Court Mathews held reduc- decision and hold that the concededly a defendant’s jeopardy- crediting sentence and aggravated barred conviction for murder to time served to the sen jeop- a conviction murder that was not inadequate remedy was аn tence ardy-barred adequate violation. Id. violation. at 1037-39. agree We cannot with dissent’s jeopardy problem in Mathews The double regard characterization of holding our having arose the result of the as defendant to double relying hyper- on a charge aggra- first been convicted interpretation technical of the law when no robbery. Subsequently, vated also he was harm by serving real would befall Thomas charge felony-murder convicted the life felony-murder. the sentence for While when the state discovered he had commit- application no doubt jeopardy of the double Id. along robbery. ted a homicide with the in accomplished by clause this case must be In its analysis at 1033-34. the first Court observing the order in which the sentences the noted that combination of the con- imposed, were we do not the discre have jeop- a violation victions was of the double apply any tion it in other manner. On Id. at 1037. The ardy clause. went contrary, the the court must construe viola jury on to rule because the had found of the jeopardy tions with no clause guilty aggravated mur- the defendant scrutiny less than it would other constitu der, they also guilty, had found him “a tional violations. Mathews, Morris v. fortiori, (included) 475 the lesser offense U.S. 106 1040-43, S.Ct. 89 well.” murder as Because this lesser (1986) J., (Blackmun, L.Ed.2d 187 concur charge not jeopardy-barred, would since charge ring). not it covered conduct within the underlying felony "prescribing great- Morgan the is under the cases of Olds. intended” Legislature er than the Missouri judgment of the that would reverse the district robbery, the Court ruled aggravated court and remand with instructions to issue the conviction to modifying offense of murder the writ. lesser included long so jeopardy violation cure would jeopardy provides The double clause not a could “demonstrate defendant person put no shall twice be in for probability that he would not reasonable I the same offense. believe the clause non-jeopardy- been convicted prohibits only multiple trials for the presence offense absent barred multiple punishments for same offense and Id. at 1038. offense.” jeopardy-barred offense, multiple also trials same but face, nothing in arising we see On for different offenses from the Morris, would indicate that Mathews same transaction. Mathews v. opinion which adequate (Brennan, J., not be in dissenting). would a similar “ court charges against believe the state Thomas’ case. We a defendant that ‘All prob act, grоw single can correct the double out of a criminal occur- felo by changing jeopardy-barred rence, episode, pros- lem or transaction’ shall non-jeopardy- (citation to a ny-murder in proceeding.” conviction ecuted omitted). permit- included offense. bur lesser not be barred state should to Thomas to show then shift try den would ted to or sentence a defendant on a improper offense, inclusion that without after a lesser included conviction charge, there is reason jeopardy-barred greater offense is vacated because not have been probability able barred. is convicted. However, prosecution even if a second Therefore, case to the we remand the permissible under the circumstances of this in proceedings aсcord district believe, majority in contrary I to the opinion. Further- the dictates of our with Morris, Mathews v. correct test days more, ninety hold that if within we determining a new trial is nec whether initi- not resentenced or a retrial Thomas is applied the Sixth Cir essary the test ated, corpus should is- of habeas Marshall, writ v. F.2d cuit Mathews sue.3 Mor Mathews v. rev’d 1032, 89 237, 106 S.Ct. ris, McMILLIAN, concurring Judge, held The Sixth Circuit dissenting part. part granted new defendant should be that a I, II, Judge if he she can demonstrate reason III of trial or in Parts

I concur I, preju she was however, possibility that he or opinion. must dis- able Hanson’s of the lesser included agree diced the trial I that the deci- from Part IV. sent greater of by the evidence of prior deci- offense Court and sions fense, jeopardy barred. As Jus which was compel us to hold that sions of this court concurring points out rights tiсe Blackmun were violated Thomas’ constitutional Morris, in Mathews opinion the reason sentence for at- vacation prejudice standard probability of complete- able robbery, which tempted test the harmless error served, confinement inconsistent ly and his continued Chapman California, adopted life murder. (1967) (18 Wall) 17 L.Ed.2d Lange, 85 E.g., parte Connecticut, 85, 84 Fahy 375 U.S. v. United v. (1873); and 163, 21 L.Ed. 872 229, 11 (1963) applied and Cir.1979). L.Ed.2d 171 Edick, (9th I do S.Ct. 772 603 F.2d errors, to constitutional which however, repeatedly agree, this violation can that not errors. Mathews per are not se reversible retrying Thomas by sentencing or be cured Morris, has at 1043. “Once it 106 U.S. I included offense of murder. on the lesser Mathews, (stating that a retrial proper S.Ct. at 1038 106 make a In the event that Thomas could convicted, showing appropriate upon showing nothing the defendant’s wоuld not have been that he retrying prevent prejudice). the State from charge. non-jeopardy-barred See under the that the state viction) been established has violated Supreme the Missouri Court in Morgan, State prosecu- the Constitution the course of a (Mo.1981) S.W.2d tion, (en proceedings banc) pre- lose whatever (prohibiting imposition of sen- regularity they sumption formerly tences on felony en- both murder and the un- joyed, derlying heavy felony), and the state bears a burden the Court finds that arguing Thomas cannot required that the result should none- be to serve the life felony as valid.” sentence on his theless be treated murder conviction.1 I respectfully disagree. BOWMAN, Judge, dissenting. In vacating felony murder sentence felony If murder Thomas’s conviction is because Thomas has served the commutat aside, agreе Judge I to be set with Han ed attempted sentence for robbery, son’s the state should view have an upon Court relies dicta in Holbrook v. Un opportunity to have Thomas resentenced on ited 649, Cir. lesser-included, non-jeopardy-barred 1943), of suggests if one of two fense in accordance with Morris v. Math served, consecutive sentences has been and 1032, ews, 106 S.Ct. 475 U.S. the court must vacate one of those sen dissent, however, I tences, parte then Lange, 85 U.S. (18 holding from the Wall.) (1873), 21 L.Ed. 872 controls and clause has been violated requires uncompleted sentence to be this case. prisoner vacated and the to be released. I disagree with the dicta in Holbrook resentencing, Absent the result of the Lange find the Court’s and In reliance on Thomas, holding today Court’s is that who Bradley, re 318 U.S. 63 S.Ct. attempted robbery was сonvicted of (1943) L.Ed. 608 misplaced.2 to be felony originally murder and sentenced to prison years consecutive terms of fifteen Lange and Bradley, the sentenc- both life, immediately, will released hav- ing simultaneously imposed both a only years served seven of his fifteen- offense, fine and single for a year attempted sentence on the although sentencing at the time of only one resentenced, conviction. Unless Thomas is punishments those two alternative could go he will free on the basis of a series of properly applicable governor fortuitous events. Because the By statute. the time the commutated Thomas’s mistake, discovered his the defendant al- sentence before the state trial court ready paid had the fine. Because the na- able to vacate it aсcordance with the ture of punishments the alternative (several holding different, after Thomas’s con- impris- and because ‍​​‌‌‌‌​‌​​‌‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌‌​​‌​‍the fine and decision, today’s effectively manslaughter.” 1. Under Thomas than murder or Mo.Rev.Stat. slips through judicially 565.021(2) (Supp.1984). manufactured crack in § if Thomas justice system, today, the criminal early even were convicted and the same sentences imposed, release contravenes not the intent of were States, then under Whalen v. United but also the intent of the 63 L.Ed.2d legislature expressed (1980), Missouri in the current the Court would have to find that statutory punishment felony murder. clause not been violat- legislature Missouri revised the statu- ed. Thomas’s sentences for both rob- murder, tory felony bery felony treatment of result murder would stand. Olds, Morgan, that State v. and State v. (Mo.1980) (en banc), S.W.2d 501 Indeed, which looked concurring opinion in Holbrook legislative intent to determine that the time, ap- notes that to that no circuit court of imposition clause was offended peals applicable beyond had found to be facts, i.e., sentences for both murder and the its narrow in the situation of “statu- felony, underlying longer are no a valid state- tory alternative sentences” for the same offense. ment of Holbrook, J., that intent. Murder in the second de- (Stone, 136 F.2d at 653 concur- gree, example, of which Rather, murder is one ring). This such case. it is a felony, now classified as "a class A and the case in which Thomas was sentenced for two degree offenses, for second murder shall be separate with the Missouri punishment in addition to the for commission deciding long Court after the fact that he could felony attempted felony, of a relаted or other be sentenced for one or the other but not both. pun- statutory pun- cumulative fences were not alternative unauthorized onment were offense, single statutory Rather, for one ishments offense. they ishments held in each case that Supreme Court separate statutory punishments were two implicated. As jeopardy clause was double separate Finally, for two offenses. the two reimposition of Lange, noted the Court punishments were same nature —im- following year-long prison prisonment interchangea- thus were —and jail days five the fine and payment of ble, punishments Lange whereas and than was in more result Bradley were not.3 It by stated: statute. authorized “protects The double clause inadvertance, im- through against multiple punishments for the same it punishments, when could posed both Pearce, offense.” North Carolina v. the fine rightfully impose but one. After 2072, 2076, treasury, paid passed into the Pearce, the Su- days five petitioner had suffered interpreted preme this language the court year’s imprisonment, one of his that, resentencing mandate when is re- changed judgment trial, quired following a already new time imprisonment from that year's to one served under the old sentence be credited If this latter sentence is enforced time. toward the new sentence. The state trial prisoner in the end it follows present in the court’s order fine pays two hundred dollars [sic] sentence and credit- year days, five imprisoned one and is ing already the time served thereunder to- judgment being imposed first all that the murder, felony life imprisonment in ward the is days’ five on him and responsive this is because the to Thomas’s claim that he can- And done addition. judgment confessedly punished excess first the same offense. not be twice authority of the court. Morgan, In accordance with State v. Thom- serving only imposed the sentence on as is at 175. convictions. Thom- one his two surrounding Thomas’s The circumstances felony in- murder sentence not as’s far different conviction and are order, by this and the result is in creased Bradley. from those holding in accord with the Pearce. Thomas illegality impos- in the state of Missouri correctly asserts that has sentences when a defendant two requiring prohibits the state clause murder and been convicted both However, the him to serve both sentences. underlying was not established require clause does not in 1973. until 1981. Thomas was sentenced given choice of that Thomas be time, sentencing court At that could prison simultaneously imposed sen- of two imposition known that its possibly have transpires it he is to serve when tences a sentence for each conviction would later Moreover, made to serve both.4 sen- cannot be be found unlawful. Moreover, (9th Edick, the Ninth Circuit was Cir. Id. at 777. 603 F.2d 772 3. United States v. resentencing, 1979), id. at where- support concerned with of its hold cited the Court only vacation of one sentence punish as in this instance ing, where the also involves an instance required. imposed counts were not ments on the two interchangeable. sentenced to im Edick was accordingly, has held re 4. The Fifth Circuit prisonment on I and to for three Count manding for vacation of the shorter of the case probation year five term consecutive fully sentences after had been two consеcutive II. The Circuit stated: Count Ninth F.2d 574 Rollins v. United served. Here, subject was to the trial court’s error Cir.1976); (5th Hodges, United States v. cf. punishments to two when ... Edick ("This 1980) Cir. Court has F.2d consistently prison proba- time or Either was authorized. resentencing to the maxi held that statutory alterna- tion was valid tives, but, permitted penalty authorized law mum illegal cumulation to avoid an imposed aggregate illegally con when the punishment, had to be the sentences equals maxi or sentences exceeds secutive Manifestly, prison concurrently. time and lawfully the court could for which mum defendant.’’). concurrently. probation cannot be served sentenced 374 jeopardy holding in not the sentencing

The Court’s order of that was to together govern: when viewed present Eighth precedent, pro Circuit earlier Although petitioner is technically cor- First, strangely anomalous results. duces rect that sentences should not have been holding ignores Eighth today’s the Court counts, on both establishing precedent that the in which he seeks does not follow. This is sentencing judge is the deter tention of the not a case passed where sentence was on deciding of two minative factor which stating two counts alternative means of vacate when both sentences sentences offense; committing rather, the third together. cannot stand Jones v. United count involved additional characteristics 66, (8th Cir.1968), States, 69 396 F.2d cert. aggravated made the offense an 1057, denied, 695, 393 89 S.Ct. 21 namely, putting persons jeopar- one— (1969); Sawyer L.Ed.2d 697 v. United dy by dangerous weapon. life use of a (8th States, 24, Cir.), 27-29 312 F.2d cert. Plainly enough, the intention of the dis- denied, 837, 1888, 83 374 U.S. 10 judge impose trict was to the maximum (1963); L.Ed.2d 1058 see also United twenty-five sentence of years aggra- Pietras, 182, robbery, vated bank and the formal de- Cir.), denied, cert. 95 S.Ct. procedure fect in his should not vitiate (1974). Today’s L.Ed.2d hold judgment. considered weight placed that decisive dictates 365 U.S. at 81 S.Ct. at 656. upon the order in which the sentences were I logic applies believe that similar in the i.e., imposed; sentencing judge that present case. The error in sen- first sentenced Thomas on I to a Count tencing good Thomas was made faith 15-year attempted robbery, term for law, existing reliance on and the chain of II to a thereafter Count consecutive life following sentencing circumstances ‍​​‌‌‌‌​‌​​‌‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌‌​​‌​‍sentence for murder. Under the should not be available to Thomas as a analysis, Thomas’s claim of Court’s early mechanism which he can force his jeopardy would baseless if the sentenc In release. rob- ing judge simply revеrsed order sentence, bery the state trial court vindicat- prison which the sentences were to be clearly ed what would have been the intent Holbrook, served. See 136 F.2d at 652. sentencing illegality court had the Surely question of whether a convicted sentencing apparent at the murderer is to serve the life term that the sentencing. time of law Missouri sentencing authority plainly intended he authorizes a life sentence for mur- was to serve not should be decided on a der and it is clear that the essentially basis so As the whimsical. Su that intended Thomas should serve a life preme Court remarked in Bozza v. United circumstances, sentence. In these it is lit- States, 160, 166-67, 330 U.S. preposterous sequence tle short of that the (1947), 91 L.Ed. 818 “The Constitution in which the consecutive sentences were require does not that should be pronounсed provide should a basis for the game in wrong which a move early properly of a felon release convicted judge immunity prisoner.” means of murder. rejected sporting game The Court also approach hypertechnicality today’s to double The extreme Green v. point United is illustrated further 5 decision Green, had Thomas been sentenced concur defend that argued rent, consecutive, ant im rather when trial court sentences of posed imprisonment, sentences for the same offense fifteen life com power fifteen-year the court lost its to sentence further mutation sentence, provide early once it had issued for his the first and would basis first, jeopardy grounds. therefore shorter sen release on double Leather, responded keeping tence was valid. with United States v. denied, the intention of the cert. trial and F.2d 80 (1960), reprehensible tion the more the crimes the Hardy likely sentencing held in v. United more it that the this Circuit completion imposed that order will have consecutive sen- concurrent sentences shorter two tences. The Court offers no constitutional serving prisoner the not excuse theory justify anomaly does the to thus cre- longer one of of those sentences when the ates. The Court stat- must be invalidated. them I believe that release Thomas on dou- ed: jeopardy grounds required by ble a situa right of the court such [T]he precedent either Court or the law the shorter sen simply vacate tion to Circuit, language much the of this less longer to stand the one tence and allow Re- clause itself. argues, recognized. Appellant has been prisoner properly lease of a convicted of 10-year however, sentence that here his and murder both served, no so that there was had been only on after service sentence it, consequently and that right to vacate logic removes conviction 20-year capable only the sentence sentencing judicial from the control being A similar situation set aside. Plainly, if process. the decision State in United were involved contention Morgan had handed down before F.2d Cir. v. Leather [271 sentencing, court Thomas’s 1959) held that the where court ... ] have sentenced more would standing longer on the record sentence of the two convictions and serious would the measure or legally constitute would only the life sentence for the imposed have punishment in situa term of the not, in Lange, murder. This is as а tion, fit to trial court saw unless the having judge, clear situation which it, concurrent the shorter vacate guidance statutory or before precedent would, two sen thus while the sentence him, authority impose cumu- mistook his together, incidence tences stood Instead, a sentences. this is case lative controlling mea only in relation to this changed long law after the sen- which the punishment. term of his sure or tencing Thomas seeks take occurred. upheld right accordingly gain change advantage of that here, to vacate trial court argument of an early release on the basis sentence, even the shorter jeop- and trivializes that mocks confined defendant had that time been prevent- ardy important purpose clause’s equal length____ a to its We period single ing multiple punishments agreement case. are Leather sentencing order to crime. Under decision, today’s at 194-95. subject, presently which Thomas any coherent reason for fails to offer the life punishment: one suffer that the consecutive rather its conclusion felony murder. He would prison nature of Thomas’s than concurrent day than the one more serve in total not jeop- life into sentences breathes such a sentence period confinement that would have been ardy claim that otherwise agree requiring him I entails. cannot dead on arrival. properly to serve addition, brings Court’s decision Ac- clause. offends the double yet result. When another anomalous about affirm the order of the cordingly, I would be vacat- prison sentences must District Court. ed, today’s has the unfortunate decision less affording

result of determine which sentence

authority to consecutive the sentences are

vacate when are concurrent. when the sentences logical explanation, for

This result defies se- crimes deserve more

the more serious general proposi- punishment, and as a

vere

Case Details

Case Name: Larry P. Thomas v. Terry Morris

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 24, 1987

Citation: 816 F.2d 364

Docket Number: 85-1934

Court Abbreviation: 8th Cir.