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U.S. Supreme Court
BENTON v. MARYLAND, 395 U.S. 784 (1969)


  1. Page 802 See Memorandum for the United States as Amicus Curiae 20-23. Counsel for the Government estimated during oral argument that the concurrent sentence doctrine is employed in the disposition of about 10% of all federal criminal appeals.
  2. Page 802 See, e. g., Carrington, Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv. L. Rev. 542 (1969).
  3. Page 802 Like the Court, see ante, at 791, n. 7, I express no view on the question whether collateral consequences may constitutionally be imposed on account of a conviction which was denied review on direct appeal because of the concurrent sentence doctrine.
  4. Page 803 This Court said in dictum in Hoag v. New Jersey, 356 U.S. 464, 471 (1958): "Despite its wide employment, we entertain grave doubts whether collateral estoppel can be regarded as a constitutional requirement. Certainly this Court has never so held." See also id., at 470-471; Sealfon v. United States, 332 U.S. 575 (1948); United States v. Oppenheimer, 242 U.S. 85, 88 (1916).
  5. Page 804 See also Restatement, Judgments § 68(1).
  6. Page 804 The Court also suggests that the concurrent sentence doctrine should not be applied for the additional reason that the eventual length of petitioner's burglary sentence is "still in some doubt." See ante, at 793. Petitioner received a 10-year sentence following his first burglary conviction and a 15-year sentence after his second conviction. The latter sentence was subsequently vacated and resentencing ordered by a federal district court. See Benton v. Copinger, 291 F. Supp. 141 (1968). The State has appealed. Whatever the outcome of that appeal, I consider that the probability of petitioner's burglary sentence being reduced below five years, so as to make the concurrent sentence doctrine inoperative, is manifestly negligible.
  7. Page 805 Cf., e. g., Sibron v. New York, 392 U.S. 40, 55-56 (1968).
  8. Page 805 See Supplementary Brief for Respondent 20, n. 6.
  9. Page 805 So far as I have been able to discover, there is no State in which petitioner's larceny conviction could have habitual offender consequences.
  10. Page 807 See, e. g., Cichos v. Indiana, 385 U.S. 76 (1966); Hamm v. City of Rock Hill, 379 U.S. 306 (1964); Bell v. Maryland, 378 U.S. 226 (1964); Machinists v. Street, 367 U.S. 740 (1961); Rice v. Sioux City Cemetery, 349 U.S. 70 (1955).
  11. Page 807 See, e. g., United States v. Gainey, 380 U.S. 63 (1965); Barenblatt v. United States, 360 U.S. 109 (1959).
  12. Page 808 In the interest of strict accuracy, it should be pointed out that MR. JUSTICE STEWART cannot and does not fully join in the above sentence of this opinion. He joined my dissenting opinion in Duncan v. Louisiana, supra, but wrote a separate memorandum in Mapp v. Ohio, supra, at 672; joined the opinion of Mr. Justice Clark in Ker v. California, supra; joined MR. JUSTICE WHITE'S dissenting Page 809 opinion in Malloy v. Hogan, supra, at 33; wrote an opinion concurring in the result in Pointer v. Texas, supra, at 409; wrote a dissenting opinion in Griffin v. California, supra, at 617; and separately concurred in the result in Klopfer v. North Carolina, supra, at 226.
  13. Page 810 The "double jeopardy" concept has been an established part of the English common law since at least 1700, and was contained in the constitutions or common law of many American jurisdictions prior to 1787. See J. Sigler, Double Jeopardy 1-37 (1969); Bartkus v. Illinois, 359 U.S. 121, 151-155 (1959) (BLACK, J., dissenting).
  14. Page 810 See Sigler, supra, at 77-117.
  15. Page 811 In the federal realm, the Trono decision was, of course, limited to its "peculiar factual setting" by Green v. United States, 355 U.S. 184, 197 (1957), in which I joined the dissenting opinion of Mr. Justice Frankfurter, id., at 198. MR. JUSTICE STEWART was not a member of the Court at the time Green was decided.
  16. Page 811 Trono was the only federal decision cited by the State of Georgia in its brief in Brantley.
  17. Page 812 For more detailed analyses of these interests, see generally Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1 (1960); Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L. J. 606 (1965); Comment, Twice in Jeopardy, 75 Yale L. J. 262 (1965); Note, Double Jeopardy: The Reprosecution Problem, 77 Harv. L. Rev. 1272 (1964).
  18. Page 812 However, in the federal system it has been held that the Government may not appeal from an acquittal without placing the accused "a second time in jeopardy for the same offense." Kepner v. United States, 195 U.S. 100, 133 (1904). See also id., at 134-137 (Holmes, J., dissenting).