the court concluded that the same conduct was not
involved in the federal and State crimes.
XI. RESENTENCE AFTER APPEAL OR ON
DEFENDANT’S MOTION
North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969), held that a sentence
imposed after a retrial could be harsher than the original
sentence, but that due process prohibited the threat of
sentence increase to discourage appeals and noted that
valid reasons for the increased sentence must appear,
premised upon circumstances occurring since the first
sentence. See also Moon v. Maryland, 398 U.S. 319
(1970).
In Arizona v. Rumsey 467 U.S. 203, 104 S.Ct. 2305,
81 L.Ed.2d 164 (1984), the Court held that the double
jeopardy clause prohibits the state from sentencing a
defendant to death after a life sentence has been set aside
on appeal. The Court reasoned that given the trial-like
characteristics of the sentencing proceedings, an initial
life sentence constitutes an acquittal of the death penalty,
and thus the double jeopardy clause prohibits the
subsequent imposition of a death sentence. The Court
held that even if the acquittal were the result of an
erroneous evidentiary ruling or an erroneous interpreta-
tion of governing legal principles, nevertheless, it is an
acquittal precluding retrial.
Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977,
36 L.Ed.2d 714 (1973), held that a sentence imposed by
jury after retrial violates neither the Double Jeopardy
Clause nor the Fourteenth Amendment Due Process
Clause so long as the jury is not informed of the prior
sentence and is not shown to be motivated by
vindictiveness. The possibility that the retrial jury might
impose a harsher sentence than did the first jury does not
place an impermissible burden on the right appeal. The
Supreme Court distinguished North Carolina v. Pearce,
which established limitations on the imposition of higher
sentences by judges in retrials following successful
appeals. The underlying rationale of Pearce was that
vindictiveness against the accused for having successfully
overturned his conviction had no place in the
resentencing process. As the Court pointed out, this
rationale in no sense precludes a jury, unaware of the
sentence previously imposed, from returning a
considered verdict and sentence. Pearce does not apply to
a “two tier” system such as a municipal court appeal
system. Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct.
2781, 49 L.Ed.2d 732 (1976); Colton v. Kentucky, 407
U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).
However, New Jersey has recognized as a matter of state
policy in the “two tier” municipal court system that no
harsher sentence will be imposed on trial de novo. State
v. DeBonis, 58 N.J. 182 (1971). See also In re Disciplinary
Hearing of Bruno, 166 N.J. Super. 285, 288 (App. Div.
1979).But see State v. Pomo, 95 N.J. 13 (1983). Defendant
appealed a municipal court conviction to the Superior
Court for a trial de novo on the record. In municipal court
defendant misrepresented his prior record of convictions
when being sentenced and was thus given a suspended
sentence and probationary term. Upon discovery of the
misrepresentation, the Law Division imposed a custodial
sentence. Defendant appealed this enhanced sentence
and prevailed in the Appellate Division. However, the
Supreme Court reversed and held that the Law Division
properly imposed an enhanced sentence. The Court
concluded that a defendant who appeals from a
municipal court conviction would not risk greater
sentence by filing an appeal de novo. However, an
exception to this rule occurs when a defendant
misrepresents his criminal conviction status as was clearly
the case here. The need for honesty overrides the general
policy and provides the rationale for this exception to the
DeBonis rule.In a series of cases, New Jersey courts have held that
the rule of Pearce allowing the imposition of a harsher
sentence upon resentencing applies not only to
defendants who are resentenced by virtue of their having
successfully appealed and having thereafter been
convicted again upon the remanded trial ordered by the
appellate court, but also to other defendants who are
compelled to face resentencing because they successfully
involved the court’s process to have an earlier sentence
vacated. In State v. Rodriguez, 97 N.J. 263 (1984), the
court held that a defendant who persuades an appellate
court to merge two convictions into one may be
resentenced upon the surviving conviction. However, the
new sentence imposed upon the surviving conviction
may not exceed the aggregate sentence originally
imposed upon the two unmerged convictions.Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90
L. Ed.2d 123 (1986), addressed the question of when
jeopardy attaches in a capital sentencing hearing. The
sentencing judge found that one of two aggravating
factors alleged by the prosecution was not present but
that the other one did exist, and upon that factor, he
sentenced defendant to death. On appeal, the state
supreme court reversed and remanded the case, noting
that there was insufficient evidence of the one aggravating