Moon v. Maryland, No. 267

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM; BLACK; HARLAN; MARSHALL; DOUGLAS
Citation26 L.Ed.2d 262,398 U.S. 319,90 S.Ct. 1730
PartiesDennis Mullene MOON, Petitioner, v. State of MARYLAND
Docket NumberNo. 267
Decision Date08 June 1970

398 U.S. 319
90 S.Ct. 1730
26 L.Ed.2d 262
Dennis Mullene MOON, Petitioner,

v.

State of MARYLAND.

No. 267.
Argued April 22, 1970.
Decided June 8, 1970.

Robert Anthony Jacques, Rockville, Md., for petitioner.

Edward F. Borgerding, Baltimore, Md., for respondent.

PER CURIAM.

'When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial?' This was the question the Court dealt with last Term in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. We held in that case that there exists no absolute constitutional bar to the imposition of a harsher sentence upon retrial, but that due process 'requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.' Id., at 725, 89 S.Ct. at 2080. 'In order to assure the

Page 320

absence of such a motivation,' we held that 'whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.' Id., at 726, 89 S.Ct. at 2081. The Pearce case was decided on June 23, 1969.

In the present case the petitioner was found guilty of armed robbery by a Maryland jury and sentenced by the trial judge to 12 years' imprisonment. The conviction was set aside on appeal by the Maryland Court of Appeals. At a second trial for the same offense in 1966 the petitioner was again convicted, and this time the trial judge imposed a sentence of 20 years' imprisonment, less full credit for time served under the original sentence. This second conviction was affirmed on appeal. 250 Md. 468, 243 A.2d 564. We granted certiorari, 395 U.S. 975, 89 S.Ct. 2135, 23 L.Ed.2d 764, requesting counsel to brief and argue the question of the retroactivity of North Carolina v. Pearce, supra.

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...

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61 practice notes
  • Vaccaro v. United States, No. 28852.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 12, 1972
    ...the sentencing judge must give reasons for an increased sentence after retrial, has not yet been decided. See Moon v. Maryland, 1970, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262. 35 Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. 36 Kitchens v. Smith, 1971, 401 U.S. 8......
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 24, 1985
    ...did not expressly concede the second trial judge was not vindictive because the prior conviction had been set aside, see Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970), he made no claim that Judge Barrera was vindictive on this basis. It is true that in Bingham v. Stat......
  • Danforth v. Minnesota, No. 06–8273.
    • United States
    • United States Supreme Court
    • February 20, 2008
    ...as improvidently granted. Moon v. Maryland, cert granted (1969), 395 U.S. 975, 89 S.Ct. 2135, 23 L.Ed.2d 764, writ dismissed (1970), 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262; Odom v. United States, cert granted (1970), 399 U.S. 904, 90 S.Ct. 2203, 26 L.Ed.2d 559, writ dismissed (1970), 4......
  • State v. Fitzpatrick, No. 14422
    • United States
    • Montana United States State Supreme Court of Montana
    • February 21, 1980
    ...Powell: "Subsequent cases have dispelled any doubt that Pearce was premised on the hazard of vindictiveness. In Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed. 262 (1970), a case granted with a view to determining the retroactivity of Pearce, the Court ordered the case dismisse......
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61 cases
  • Vaccaro v. United States, No. 28852.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 12, 1972
    ...the sentencing judge must give reasons for an increased sentence after retrial, has not yet been decided. See Moon v. Maryland, 1970, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262. 35 Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. 36 Kitchens v. Smith, 1971, 401 U.S. 8......
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 24, 1985
    ...did not expressly concede the second trial judge was not vindictive because the prior conviction had been set aside, see Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970), he made no claim that Judge Barrera was vindictive on this basis. It is true that in Bingham v. Stat......
  • Danforth v. Minnesota, No. 06–8273.
    • United States
    • United States Supreme Court
    • February 20, 2008
    ...as improvidently granted. Moon v. Maryland, cert granted (1969), 395 U.S. 975, 89 S.Ct. 2135, 23 L.Ed.2d 764, writ dismissed (1970), 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262; Odom v. United States, cert granted (1970), 399 U.S. 904, 90 S.Ct. 2203, 26 L.Ed.2d 559, writ dismissed (1970), 4......
  • State v. Fitzpatrick, No. 14422
    • United States
    • Montana United States State Supreme Court of Montana
    • February 21, 1980
    ...Powell: "Subsequent cases have dispelled any doubt that Pearce was premised on the hazard of vindictiveness. In Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed. 262 (1970), a case granted with a view to determining the retroactivity of Pearce, the Court ordered the case dismisse......
  • Request a trial to view additional results

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