Benton v. Maryland

Decision Date23 June 1969
Docket NumberNo. 201,201
Citation89 S.Ct. 2056,395 U.S. 784,23 L.Ed.2d 707
PartiesJohn Dalmer BENTON, Petitioner, v. State of MARYLAND. Re
CourtU.S. Supreme Court

M. Michael Cramer, Washington, D.C., for petitioner.

Peter L. Strauss, Washington, D.C., for the United States, as amicus curiae, at the invitation of the Court.

Francis B. Burch, Baltimore, Md., for respondent.

Mr. Justice MARSHALL, delivered the opinion of the Court.

In August 1965, petitioner was tried in a Maryland state court on charges of burglary and larceny. The jury found petitioner not guilty of larceny but convicted him on the burglary count. He was sentenced to 10 years in prison. Shortly after his notice of appeal was filed in the Maryland Court on Appeals, that court handed down its decision in the case of Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). In Schowgurow the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God. As a result of this decision, petitioner's case was remanded to the trial court. Because both the grand and petit juries in petitioner's case had been selected under the invalid constitutional provision, petitioner was given the option of demanding re-indictment and retrial. He chose to have his conviction set aside, and a new indictment and new trial followed. At this second trial, petitioner was again charged with both larceny and burglary. Petitioner objected to retrial on the larceny count, arguing that because the first jury had found him not guilty of larceny, retrial would violate the constitutional prohibition against subjecting persons to double jeopardy for the same offense. The trial judge denied petitioner's motion to dismiss the larceny charge, and petitioner was tried for both larceny and burglary. This time the jury found petitioner guilty of both offenses, and the judge sentenced him to 5 years on the burglary count1 and 5 years for larceny, the sentences to run concurrently. On appeal to the newly created Maryland Court of Special Appeals, petitioner's double jeopardy claim was rejected on the merits. 1 Md.App. 647, 232 A.2d 541 (1967). The Court of Appeals denied discretionary review.

On the last day of last Term, we granted certiorari, 392 U.S. 925, 88 S.Ct. 2297, 20 L.Ed.2d 1384 (1968), but limited the writ to the consideration of two issues:

'(1) Is the double jeopardy clause of the Fifth Amendment applicable to the States through the Fourteenth Amendment?

'(2) If so, was the petitioner 'twice put in jeopardy' in this case?'

After oral argument, it became clear that the existence of a concurrent sentence on the burglary count might prevent the Court from reaching the double jeopardy issue, at least if we found that any error affected only petitioner's larceny conviction. Therefore, we scheduled the case for reargument, 393 U.S. 994, 89 S.Ct. 481, 21 L.Ed.2d 460 (1968), limited to the following additional question not included in the original writ:

'Does the 'concurrent sentence doctrines,' enunciated in Hirabayashi v. United States, 320 U.S. 81, 105, 63 S.Ct. 1375, 87 L.Ed. 1774, and subsequent cases, have continuing validity in light of such decisions as Ginsberg v. New York, 390 U.S. 629, 633, n. 2 (88 S.Ct. 1274, 20 L.Ed.2d 195), Peyton v. Rowe, 391 U.S. 54 (88 S.Ct. 1549, 20 L.Ed.2d 426), Carafas v. LaVallee, 391 U.S. 234, 237—238 (88 S.Ct. 1556, 20 L.Ed.2d 554), and Sibron v. New York, 392 U.S. 40, 50—58 (88 S.Ct. 1889, 20 L.Ed.2d 917)?'

The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument.

After consideration of all the questions before us, we find no bar to our decision of the double jeopardy issue. On the merits, we hold that the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment, and we reverse petitioner's conviction for larceny.


At the outset of this case we are confronted with a jurisdictional problem. If the error specified in the original writ of certiorari were found to affect only petitioner's larceny conviction,2 reversal of that conviction would not require the State to change the terms of petitioner's confinement. Whatever the status of his sentence on the larceny conviction, petitioner would probably stay in prison until he had served out his sentence for burglary. 3 Is there, in these circumstances, a live 'case' or 'controversy' suitable for resolution by this Court, or is the issue moot? Is petitioner asking for an advisory opinion on an abstract or hypothetical question? The answer to these questions is crucial, for it is well settled that federal courts may act only in the context of a justiciable case or controversy. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911); see Flast v. Cohen, 392 U.S. 83, 94—97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968).

The language used in a number of this Court's opinions might be read to indicate that the existence of a valid concurrent sentence removes the necessary elements of a justiciable controversy. The 'concurrent sentence dot rine' took root in this country quite early, although its earliest manifestations occurred in slightly different contexts. In Locke v. United States, 7 Cranch 339, 3 L.Ed. 364 (1813), a cargo belonging to the plaintiff in error had been condemned under a libel containing 11 counts. Chief Justice John Marshall, speaking for the Court, found it unnecessary to consider Locke's challenges to all 11 counts. He declared, simply enough, 'The Court however, is of opinion, that the 4th count is good, and this renders it unnecessary to decide on the others.' Id., at 344. Similar reasoning was later applied in a case where a singe general sentence rested on convictions under several counts of an indictment. Drawing upon some English cases and some dicta from Lord Mansfield,4 the Court in Claassen v. United States, 142 U.S. 140, 146, 12 S.Ct. 169, 170, 35 L.Ed. 966 (1891) held that if the defendant had validly been convicted on any one count 'the other counts need not be considered.' The most widely cited application of this approach to cases where concurrent sentences rather than a single general sentence, have been imposed is Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). In that case the defendant had been found guilty of two different offenses and had received concurrent three-month sentences. He challenged the constitutionality of both convictions, but this Court affirmed the lower court's judgment after considering and rejecting only one of his challenges. Since the conviction on the second count was valid, the Court found it 'unnecessary' to consider the challenge to the first count. Id., at 85, 105, 63 S.Ct. at 1375, 1387.

The concurrent sentence doctrine has been widely, if somewhat haphazardly, applied in this Court's decisions. At times the Court has seemed to say that the doctrine raises a jurisdictional bar to the consideration of counts under concurrent sentences. Some opinions have baldly declared that judgments of conviction 'must be upheld' if any one count was good. Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 1087, 3 L.Ed.2d 1115 (1959); see United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 756, 13 L.Ed.2d 658 (1965). In other cases the Court has chosen somewhat weaker language, indicating only that a judgment 'may be affirmed if the conviction on either count is valid.' Roviaro v. United States, 353 U.S. 53, 59, n. 6, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). And on at least one occasion, the Court has ignored the rule entirely and decided an issue that affected only one count, even though there were concurrent sentences. Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 40 L.Ed. 1118 (1896).

One can search through these cases, and related ones, without finding any satisfactory explanation for the concurrent sentence doctrine. See United States v. Hines, 256 F.2d 561, 562—563 (C.A.2d Cir. 1958). But whatever the underlying justifications for the doc- trine, it seems clear to us that it cannot be taken to state a jurisdictional rule. See Yates v. United States, 355 U.S. 66, 75 76, 78 S.Ct. 128, 134, 2 L.Ed.2d 95 (1957); Putnam v. United States, supra. Moreover, whatever may have been the approach in the past, our recent decisions on the question of mootness in criminal cases make it perfectly clear that the existence of concurrent sentences does not remove the elements necessary to create a justiciable case or controversy.

In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), we held that a criminal case did not become moot upon the expiration of the sentence imposed. We noted 'the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.' Id., at 55, 88 S.Ct., at 1899. We concluded that the mere possibility of such collateral conneces ary to make it a justiciable case the 'impact of actuality' which was necessary to make it a justiciable case or controversy. Sibron and a number of other recent cases have canvassed the possible adverse collateral effects of criminal convictions,5 and we need not repeat that analysis here. It is enough to say that there are such possibilities in this case. For example, there are a few States which consider all prior felony convictions for the purpose of enhancing sentence under habitual criminal statutes, even if the convictions actually constituted only separate counts in a single indictment tried on the same day.6 Petitioner might some day in one of these States have both his larceny and burglary convictions counted against him. Although this possibility may well be a remote one, it is enough to give this case an adversary cast and make it justiciable. Moreover, as in Sibron, both of petitioner's convictions might some day be used to impeach his character if put in issue at a...

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