JIMMY JONES, PETITIONER V. LARRY P. THOMAS No. 88-420 In the Supreme Court of the United States October Term, 1988 On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit Brief for the United States as Amicus Curiae Supporting Petitioner TABLE OF CONTENTS Question Presented Interest of the United States Statement Summary of argument Argument: The Double Jeopardy Clause is not violated when an unauthorized multiple prison sentence is reduced to a lawful prison sentence even though the defendant has already completed a valid component of the multiple sentence Conclusion QUESTION PRESENTED Respondent was convicted of attempted robbery and felony murder and was sentenced to consecutive terms of 15 years' and life imprisonment, respectively, for the two offenses. His 15-year sentence, which he began serving first, was commuted and was subsequently vacated by the Missouri state courts on the ground that the Missouri legislature did not intend to permit the imposition of consecutive sentences for felony murder and the felony that served as the predicate for the felony murder charge. The question presented in this case is whether, under these circumstance, the Double Jeopardy Clause required respondent's life sentence to be vacated because he had already completed the service of his 15-year sentence. INTEREST OF THE UNITED STATES This case presents a recurring question regarding the reach of the Double Jeopardy Clause. In particular, it raises an issue as to how courts should give effect to the Clause's prohibition against imposing multiple punishments for the same offense. Although this is a state case, the court's resolution of the constitutional question in this case will affect the federal criminal justice system as well as the state systems. Because the constitutional issue presented here, or closely analogous issues, arise whenever a court vacates some portion of a multiple-count sentence and either directs the disposition of the remaining part of the sentence or remands the case for resentencing, the United States has a substantial interest in the outcome of this case. STATEMENT 1. On November 8, 1972, respondent attempted to rob an auto parts store in St. Louis, Missouri. During the course of the holdup, respondent engaged in a gunfight with one of the store's customers. Respondent shot and killed the customer. After a jury trial in the St. Louis Circuit Court, respondent was convicted of attempted robbery and first-degree felony murder. The felony murder charge was based on the fact that the customer was killed during the commission of a felony -- the attempted robbery of the auto parts store. The trial court sentenced respondent to consecutive terms of 15 years' imprisonment on the attempted robbery count and life imprisonment on the felony murder count. The court directed that the 15-year sentence be served first. The Missouri Court of Appeals affirmed. Pet. App. A3; State v. Thomas, 522 S.W.2d 74 (Mo. App. 1975). 2. In 1977, respondent filed in state court a motion for post-conviction relief, claiming that it was improper for the trial court to impose separate, consecutive sentences for felony murder and the underlying felony of attempted robbery. In June 1981, while respondent's motion for post-conviction relief was pending, the Governor of Missouri commuted respondent's 15-year sentence for attempted robbery. Pet. App. A4. At that time, respondent had served approximately eight years of his 15-year sentence on the attempted robbery charge. Respondent remained in prison, however, because he still had to serve the life sentence that was imposed on the felony murder count. Following the commutation order, the state trial court granted in part respondent's motion for post-conviction relief. The court ruled that the Missouri legislature "did not intend to allow separate and cumulative punishments for felony-murder and the underlying felony which produced the homicide." Pet. App. A70. Accordingly, the court vacated respondent's conviction and sentence for attempted robbery. The court did not disturb respondent's life sentence for the felony-murder conviction, but the court credited against respondent's life sentence all the time respondent had served under the 15-year sentence prior to the time that sentence was vacated. Pet. App. A4, A82-A83. The Missouri Court of Appeals affirmed the trial court's ruling. Pet. App. A65-A72; Thomas v. State, 665 S.W.2d 621 (Mo. Ct. App. 1983). While agreeing that the trial court was correct in holding that separate sentences could not lawfully be imposed for the two offenses, respondent argued that the trial court had not granted him the proper relief. Under the Double Jeopardy Clause, he argued, he was entitled to immediate release, because he had already served one of the two sentences that had initially been imposed on him. Because he had completed serving the commuted 15-year sentence for attempted robbery, respondent argued, it was constitutionally impermissible for the state courts to vacate that sentence and require him to serve the remainder of the life term that had been imposed on the felony murder count. Pet. App. A66-A67. The Missouri Court of Appeals rejected respondent's argument. It held that the Double Jeopardy Clause did not require that petitioner be released, since one of the two sentences imposed on him was lawful, and there was no justification for holding that the longer of the two sentences was the one that must be vacated. The court noted that respondent was not prejudiced by the vacation of the sentence he had already completed serving, because the entire period of respondent's incarceration was being credited to the life sentence he was then serving on the felony murder charge. Pet. App. A70-A71. 3. Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. In his petition, respondent renewed his double jeopardy claim and argued that he should be entitled to immediate release because he had already completed serving one of the two sentences originally imposed on him. The district court denied relief. Pet. App. A51-A54. The court held that respondent had not suffered a double jeopardy violation because "he is not being subjected to greater punishment than the legislature intended." Id. at A54. 4. A divided three-judge panel of the Eighth Circuti reversed and remanded. Pet. App. A24-A50. The panel majority concluded that as a result of the commutation of respondent's sentence by the Governor of Missouri, respondent completed serving his 15-year sentence for attempted robbery on June 16, 1981. Pet. App. A27-A29. Citing this Court's decisions in Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), and In re Bradley, 318 U.S. 50 (1943), the panel held that because respondent had completed the 15-year sentence before the state court vacated that sentence and ordered respondent to complete the life sentence that was imposed on the felony murder count, the state court's order violated the Double Jeopardy Clause. Pet. App. A30-A37. Under Lange and Bradley, the panel concluded, once respondent had completed one of the two sentences that could lawfully have been imposed in the first instance, he could not be forced to serve any portion of the other sentence, even if he were given credit toward his life sentence for all the time he had served under the 15-year sentence. Pet. App. A36-A37. /1/ Judge Bowman dissented. In his view, the constitutional prohibition against multiple punishments for the same offense was not violated, because respondent is serving "only the sentence imposed on one of his two original convictions." Pet. App. A45. Although the State could not require him to serve both sentences, Judge Bowman explained, the Double Jeopardy Clause "does not require that (respondent) be given the choice of which of two simultaneously-imposed prison sentences he is to serve when it transpires that he cannot be made to serve both." Ibid. The "extreme hypertechnicality" of the panel's decision, Judge Bowman noted, is illustrated by the fact that respondent would not have to be released if the trial court had imposed concurrent, rather than consecutive sentences on the two counts; in that event, he would have to serve the remainder of his life sentence, without benefitting from the happenstance that the trial court ordered him to serve the 15-year sentence first. Pet. App. A48. 5. The Eighth Circuit granted rehearing en banc and in a 5-4 decision ordered that the writ of habeas corpus be issued. Pet. App. A1-A14. Like the panel, the en banc court concluded, first, that respondent had completed serving his sentence for attempted robbery. Id. at A7-A8. The court then interpreted Ex parte Lange, supra, and In re Bradley, supra, as standing for the proposition that a criminal defendant may not be punished further after he completes the service of a sentence that is one component of several "illegally imposed multiple sentences" Pet. App. A12. Accordingly, the court held that the state court's order requiring respondent to complete the service of his life sentence, even with credit for the period he had served under the vacated 15-year sentence, violated the Double Jeopardy Clause. /2/ The four dissenting judges stated that in their view, the Double Jeopardy Clause does not require that respondent be released from custody simply because he was deemed to have completed the sentence that the trial court happened to have ordered him to serve first. The dissenting judges observed that, under the majority's view of the law, respondent could be required to serve the life term for murder if the judge had directed that sentence to be served first. The dissent concluded that "it is little short of preposterous that the sequence in which the consecutive sentences were pronounced should provide a basis for (respondent's) early release" (Pet. App. A20-A21). SUMMARY OF ARGUMENT 1. The Double Jeopardy Clause prohibits multiple punishments for the same offense. As this Court has held, that prohibition means only that a defendant may not receive greater punishment than the legislature intended for his crime. Here, the Missouri courts ruled that the Missouri legislature intended to authorize punishment only for respondent's conviction for felony murder. Accordingly, the trial court reduced respondent's sentence to life imprisonment. Under that order respondent will not serve a greater sentence than the legislature authorized. Thus, respondent has not suffered unconstitutional multiple punishments for the same offense. 2. Respondent claims that the Double Jeopardy Clause establishes a special rule for multiple sentences. He asserts that, because he initially received unauthorized multiple sentences, he must be released since he has served one of the sentences even though it was the shorter one. That suggestion is not supported by any interest protected by the Double Jeopardy Clause. The sentencing court thought that respondent deserved to be sentenced to a penalty of life plus 15 years' imprisonment. The Missouri courts later determined that the legislature did not intend to authorize a penalty greater than life imprisonment. The interests of the Double Jeopardy Clause were satisfied, therefore, when the sentencing court reduced respondent's prison sentence to life. 3. This Court's decision in Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), does not support respondent. The Court in that case held that a defendant could not be fined and sentenced to prison where the criminal statute authorized either punishment but not both. As the Court has made clear in more recent cases, Ex parte Lange stands for the settled proposition that the Double Jeopardy Clause forbids punishment greater than the legislature authorized. The Missouri courts did not violate the prohibition in this case. Nor should this Court's decision in In re Bradley, 318 U.S. 50 (1943), be read as supporting respondent's claim. The Court held in Bradley that a defendant could not be fined and sentenced to prison where the statute allowed only one or the other punishment, even though Bradley's money used to pay the fine was returned to him when the judge learned of the error. That decision is consistent with this Court's later Double Jeopardy cases only if the Court believed that Bradley was punished by paying the fine even though his money was returned to him. If Bradley is to remain good law, it must be confined to its unusual context: where a court simultaneously imposed a fine and imprisonment for a crime that allowed only either penalty. To export Bradley into other contexts would be inconsistent with this Court's later opinions regarding the multiple-punishment component of the Double Jeopardy Clause. Moreover, the technical rule of Bradley makes no sense when applied to multiple prison terms. If respondent had been directed to serve his life sentence first, or concurrently with his attempted-robbery sentence, he would have no plausible claim based on Bradley. He would simply have to serve the authorized term of life imprisonment that the sentencing judge imposed. Thus, In re Bradley should be limited to its special circumstances and not be used to release respondent from prison years before the trial court and the Missouri legislature intended. ARGUMENT THE DOUBLE JEOPARDY CLAUSE IS NOT VIOLATED WHEN AN AUTHORIZED MULTIPLE PRISON SENTENCE IS REDUCED TO A LAWFUL PRISON SENTENCE EVEN THOUGH THE DEFENDANT HAS ALREADY COMPLETED A VALID COMPONENT OF THE MULTIPLE SENTENCE 1. Respondent was tried once for his crime and convicted. He has not again been prosecuted for that crime. Accordingly, this case does not present any of the principal concerns of the Double Jeopardy Clause -- i.e., the "embarrassment, anxiety, and expense" of multiple trials and the concomitant increase in the "risk of an erroneous conviction." Ohio v. Johnson, 467 U.S. 493, 499 (1984). Instead, this case raises the issue whether the Missouri courts violated the Double Jeopardy Clause's prohibition "against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969). a. In Ohio v. Johnson, supra, this Court noted that the constitutional prohibition against multiple punishments "is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature" (467 U.S. at 499). Accordingly, in Missouri v. Hunter, 459 U.S. 359, 366 (1983), the Court ruled that "(w)ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." See also Garrett v. United States, 471 U.S. 773, 793 (1985); Whalen v. United States, 445 U.S. 684, 689 (1980). Respondent was convicted after one trial of felony murder and attempted robbery. The trial court sentenced him to a prison term greater than life imprisonment. The Missouri courts later held, however, that the Missouri legislature intended to limit the punishment of respondent to the penalty for felony murder -- i.e., life imprisonment. Following the command of the Double Jeopardy Clause, the trial court then vacated respondent's attempted robbery conviction and reduced respondent's sentence to life imprisonment, the sentence that had been imposed on the felony murder count. Thus, respondent has not and will not receive "greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. at 366. The multiple-sentence component of the Double Jeopardy Clause "does no more." Ibid. b. Respondent contends (Br. in Opp. 11-18) that, contrary to this Court's statement in Missouri v. Hunter, the Double Jeopardy Clause establishes another rule for multiple sentences. He argues that the Clause also means that, because he initially received unauthorized multiple sentences, he must be released since he has served one of the two sentences, even though it is the shorter one. Respondent's proposal does not follow from any interest protected by the Double Jeopardy Clause. The trial court lawfully sentenced respondent to life imprisonment for felony murder, and respondent will not be punished any more than that sentence requires. The only error in the original sentence -- the imposition of two sentences rather than one -- was corrected by the order of the state court vacating the 15-year sentence for attempted robbery. Because respondent has been given full credit on his life sentence for the time he served under the 15-year sentence, the vacated 15-year sentence will not have any effect on the date of respondent's release from his life sentence. See Pet. App. A70-A71. The state court order vacating respondent's 15-year sentence fully protected the interest underlying the prohibition against multiple punishments: that a defendant should not be exposed to two penalties for a single offense. The sentencing judge believed that respondent should be subject to a total penalty of life plus 15 years' imprisonment. The state courts concluded that the state legislature did not intend to permit the penalty for conduct such as respondent's to exceed life imprisonment. It is therefore consistent with the Double Jeopardy Clause to require respondent to serve the term of life imprisonment, which both the sentencing court and the state legislature believed was an appropriate penalty for respondent's criminal conduct. 2. Respondent relies on this Court's decisions in Ex parte Lange, 85 U.S. (18 Wall.), 163 (1873), and In re Bradley, 318 U.S. 50 (1943), as support for his proposed rule governing multiple sentences. Ex parte Lange does not support respondent. The decision in In re Bradley, however, does provide him some support. Nevertheless, as we explain below, the decision in In re Bradley, lacked any support in precedent at the time it was decided and is inconsistent with the Court's more recent double jeopardy cases. The double jeopardy analysis In re Bradley, therefore, should not be extended to the context of this case. a. The defendant in Ex parte Lange was convicted of a crime that could be punished by a $200 fine or a one-year prison term but not both. See 85 U.S. at 164. The trial court, however, sentenced Lange to both the maximum fine and a one-year prison term. Lange paid the fine and then sought a writ of habeas corpus. This Court ordered Lange to be released. Id. at 178. The Court noted that the money Lange used to pay his fine had "passed into the Treasury of the United States" and could not be returned. Id. at 175. Thus, the Court reasoned that any further punishment of Lange would be "in excess of the authority of the court." Ibid. When Lange paid his fine, the Court stated, "the power of the court to punish further was gone." Id. at 176. Accordingly, Ex parte Lange stands for the proposition, reiterated in such cases as Ohio v. Johnson and Missouri v. Hunter, that the Double Jeopardy Clause forbids "greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. at 366. That reading of Ex parte Lange is supported by this Court's later cases. For example, in North Carolina v. Pearce, 395 U.S. 711 (1969), the Court cited Ex parte Lange for the proposition that the Double Jeopardy Clause requires a State to credit a defendant with time served on a conviction if that conviction is reversed on appeal and the defendant is retried and again convicted. The Court explained (id. at 717-718) that, without such a credit, the defendant's ultimate punishment might run afoul of the principle of Ex parte Lange that a criminal sentence may not exceed the punishment authorized by the legislature. Similarly, in United States v. DiFrancesco, 449 U.S. 117, 139 (1980), the Court stated that "Ex parte Lange demonstrates (that) a defendant may not receive a greater sentence than the legislature has authorized." Accordingly, neither the holding of Ex parte Lange nor this Court's interpretations of that case support respondent's claim that Lange established a rule that a defendant must be released from custody if he completes one component of an unauthorized, multiple-component sentence. b. The defendant in In re Bradley was found guilty of contempt and sentenced to six months' imprisonment and a $500 fine even though the statute only allowed a fine or imprisonment. See 318 U.S. at 51. Bradley paid the fine. The trial court then learned that the sentence was erroneous. The court therefore amended the sentence to delete the fine and ordered the clerk to return Bradley's money. Id. at 52. Relying exclusively on Ex parte Lange, this Court held that Bradley could not be imprisoned. The Court stated: "Since one valid alternative provision of the original sentence has been satisfied, the petitioner is entitled to be freed of further restraint." Ibid. The rule in Bradley is a highly technical one. In light of the fact that the fine was promptly returned to Bradley, it is difficult to square the decision in that case with this Court's more recent decisions holding that the double jeopardy bar against multiple punishments is offended only if the court imposes a sentence greater than the legislature intended. Indeed, it would appear that in light of the Court's more recent approach to the multiple punishment issue, the decision in Bradley is supportable only if the Court believed that Bradley was punished by paying the fine even though his money was promptly returned to him. If his payment of the fine constituted punishment in that fashion, then any additional prison term would have exceeded the court's statutory authority. If Bradley is read in that way, then it simply stands for the same proposition as Missouri v. Hunter -- that the Double Jeopardy Clause forbids greater punishment than is authorized by the legislature. If Bradley is to remain good law at all, it should be confined to its unusual context: where a court has simultaneously imposed a fine and imprisonment for a crime for which the legislature has authorized only one of those alternative penalties, but not both. It should not be applied where a court has imposed two terms of imprisonment for what the court considers separate offenses, and it is later held that only one offense was involved and thus only one term of imprisonment was authorized. /3/ Because a fine and imprisonment are penalties of different character, it often will not be clear which penalty the sentencing court would have selected if it had known that it could impose only one. There may be some justification, therefore, to hold that if the defendant has paid his fine, a court should not later be forced to decide that the sentencing court would have preferred to have the defendant serve his term of imprisonment rather than pay a fine. /4/ Where the sentencing court has imposed two consecutive terms of imprisonment, however, it is clear that the sentencing court would have intended the defendant to serve at least the longer of the two terms. Where the intention of the sentencing court is so clear, it does not make sense to give the defendant the windfall of a further reduction in his sentence simply because the sentencing court happened to have structured the sentences by having the defendant serve the shorter one first, and simply because the defendant has completed the shorter sentence before obtaining relief from the judgment against him. To uphold a double jeopardy claim in that context would be at war with this Court's observation in Bozza v. United States, 330 U.S. 160, 166-167 (1947), that "(t)he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." The technical rule applied in In re Bradley can lead to nonsensical results if applied in contexts such as the one in this case. For example, there is no indication that the trial judge in this case thought that the sequence of respondent's original sentence (15 years' imprisonment to be followed by a term of life imprisonment) was in any way important. /5/ If respondent had been directed to serve the life sentence first, he would have been serving that sentence when the trial court corrected his sentence. In that case, respondent would have had no plausible claim based on Bradley. The irrationality that would be produced by applying Bradley to a case involving consecutive prison sentences is underscored even more by noting what would have happened in this case if the sentencing court had imposed concurrent rather than consecutive sentences on the two counts on which respondent was convicted. Suppose the court had regarded respondent as less culpable and had imposed concurrent sentences of 15 years' and life imprisonment, rather than making the two sentences consecutive. Suppose further that respondent's 15-year sentence had been vacated after having been commuted, just as in this case. In that event, respondent would have to serve the remainder of his life sentence, since even the Eighth Circuit has held that when a court vacates one of two sentences, it is not required to vacate the longer sentence simply because the defendant has completed serving the shorter one. Hardy v. United States, 292 F.2d 192, 194-195 (8th Cir. 1961); see also United States v. Leather, 271 F.2d 80 (7th Cir. 1959), cert. denied, 363 U.S. 831 (1960). Ironically, then, if Bradley is applied in this context, respondent will be substantially better off by having received consecutive sentences than he would have been if the sentences had been concurrent. A further anomaly that would flow from applying Bradley to a case involving multiple sentences of imprisonment is that everything turns on whether the defendant has completed his first sentence or not. Thus, if the state court had vacated respondent's 15-year sentence the day before the Governor's commutation order became effective, the court apparently would have been free, even under Bradley, to require that respondent complete his life sentence on the felony murder count. Under the court of appeals' reasoning, however, a delay in the state court's disposition until the day after the commutation order became effective would bar the state court from adjusting respondent's sentence to accord with the clear intention of the sentencing court. Nothing in the constitutional underpinnings of In re Bradley requires that the criminal justice system endure such anomalous results. The decision in Bradley was based exclusively on Ex parte Lange. But as we explained above, Ex parte Lange held only that a defendant may not be punished more severely than authorized by the legislature. Accordingly, In re Bradley lacked direct support in precedent. Nor was the holding in Bradley necessary in order to uphold the policies underlying the ban on multiple punishment that has been recognized as a component of the Double Jeopardy Clause. Thus, if the Court does not choose to overrule it altogether, it should limit In re Bradley to its special circumstances and not apply to it to release respondent from prison years before the trial court and the Missouri legislature intended. Subsequent decisions of this Court regarding the role of the Double Jeopardy Clause in governing sentencing matters do not justify the broad reading that the court of appeals gave to In re Bradley. In Bozza v. United States, supra, for example, the defendant was convicted of a crime that carried a mandatory sentence of a fine and imprisonment. 330 U.S. at 165-166. The trial court initially sentenced the defendant to imprisonment only. The court soon learned of its error and resentenced the defendant by adding a fine to his punishment. Ibid. This Court rejected the defendant's claim that the court violated the Double Jeopardy Clause by correcting the sentence, even though the result was to increase the sentence that the Court had initially imposed. In United States v. DiFrancesco, 449 U.S. 117 (1981), the Court relied on Bozza for the proposition "that a sentence does not have the qualities of constitutional finality that attend an acquittal." Id. at 134. The Court in DiFrancesco then stated that "(t)he Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137. Accordingly, the Court held in DiFrancesco that the Double Jeopardy Clause does not bar the government from asking an appellate court to increase a sentence set by a trial court even if the defendant has already started to serve that sentence. Id. at 138. See also Pennsylvania v. Goldhammer, 474 U.S. 28 (1985). It is therefore settled that the Double Jeopardy Clause does not prevent a sentence from being increased if the resultant sentence is one authorized by the legislature. That is true even where the defendant has begun serving his sentence. And there is no discernible constitutional principle that would require a different result if the defendant has not only begun serving his sentence, but has completed serving some discrete component of it. Thus, a broad reading of the holding of In re Bradley -- that a multiple sentence may not be reduced if a valid component has been served -- is inconsistent with the Court's current view of double jeopardy principles. In United States v. Benz, 282 U.S. 304 (1931), the court held that a trial court may reduce a sentence that is already being served. The Court in Benz then stated in dictum that a court may not increase a sentence once it is imposed. The Court cited Ex parte Lange for that dictum. Id. at 307. Fifty years later, in United States v. DiFrancesco, supra, the Court reexamined Benz and found that its reliance on Ex parte Lange was misplaced. See 449 U.S. at 138-139. Hence, the Court "confine(d) the dictum in Benz to Lange's specific context." Id. at 139. In re Bradley, which similarly relied on an unduly broad reading of Lange for its support, should likewise be limited to its specific context. It should not be generalized to create a rule of double jeopardy that allows a defendant such as respondent to go free years before the trial court and the legislature intended. If the judgment in this case is affirmed, respondent will have served only eight years' imprisonment for conduct to which the legislature assigned a penalty of life imprisonment, and for which the sentencing court intended respondent to serve a life term plus 15 years. The fact that the sentencing court could validly elect to impose only one of those sentences does not justify the conclusion that respondent must be released because he has served the shorter of the two. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General BRIAN J. MARTIN Assistant to the Solicitor General FEBRUARY 1989 /1/ Judge McMillian, who concurred in the panel's analysis of the double jeopardy issue, disagreed with Judge Hanson, the author of the plurality opinion, on the issue of remedy. Judge Hanson concluded that the State could cure the double jeopardy violation "by changing the jeopardy-barred felony-murder conviction to a non-jeopardy-barred lesser included offense" or by trying respondent for some lesser included offense. Pet. App. A39 & n.3. Judge McMillian disagreed. In his view, the only remedy for the double jeopardy violation was to order respondent released. Pet. App. A40-A41. /2/ With respect to the issue of remedy, the en banc court adopted the position Judge McMillian had taken, dissenting in part from the judgment of the panel. The en banc court concluded that because respondent had completed one of the two sentences that had been imposed on him, the State could not remedy the Double Jeopardy violation by substituting a conviction on a lesser included offense in place of the felony murder conviction, or by retrying respondent on a lesser included offense. Pet. App. A13-A14. /3/ Multiple sentences for what is ultimately held to be a single offense can arise in one of two ways. The court can impose separate sentences for separate statutory violations that are ultimately held to constitute only a single offense, as in this case. Or the court can impose separate sentences for multiple alleged violations of a single statute, and those multiple alleged violations can later be held to constitute only a single unit of prosecution, supporting only a single sentence. /4/ Obviously, once a defendant has served a sentence of imprisonment, a court cannot decide that it would prefer that he pay a fine instead, and then select the fine as the proper penalty. /5/ The court probably directed the attempted robbery sentence to be served first because attempted robbery was charged in Count 1 of the charging instrument. See Br. in Opp. 23.