factor that the judge found to be present. With respect
to the aggravating factor that the judge discarded, the
appeals court found that the judge had mistaken the law,
and that upon retrial, the court might find the existence
of this aggravating factor. On remand, defendant was
again convicted of capital murder and sentenced to death
on the basis that both aggravating factors existed. The
Supreme Court held that when the sentencing judge
rejected the one aggravating factor, it did not constitute
an “acquittal” for purpose of double jeopardy.
Furthermore, the Court concluded that the double
jeopardy clause does not forbid a second capital
sentencing hearing where the evidence was never deemed
insufficient to justify imposition of the death penalty
and, hence, it did not “acquit” defendant.
Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976,
89 L.Ed.2d 104 (1986), found that the due process
clause was not violated by the trial judge’s imposition of
a longer sentence on retrial than the jury had imposed at
the prior trial, where the same judge had ordered the
retrial and where the judge entered findings of fact
justifying the longer sentence. Defendant had moved for
a new trial on the basis of prosecutorial misconduct. The
trial judge granted the motion, and defendant was then
convicted by the jury on retrial before the same judge.
However, on retrial, defendant requested the judge to fix
sentence rather than the jury. The judge did so and
sentenced defendant to 30 years longer that the original
sentence defendant received from the jury. Nevertheless,
the judge entered specific and objective findings of fact,
justifying the longer sentence. Hence, the Court ruled,
there was no basis for a presumption of vindictiveness
which was proscribed in Pearce.
In State v. Biegenwald, 110 N.J. 521 (1988),follow-
ing Pearce, held that there was no double jeopardy
violation if, on retrial, a court imposed a harsher sentence
than that imposed after the first conviction. The Court
continued, however, that in order to ensure that a harsher
sentence is not due to the vindictiveness of the sentencing
court, the court must set forth its reasons for doing so,
which should be based on “objective information
concerning identifiable conduct” on the defendant’s
part. The Court ruled that on resentencing, admission of
a second murder conviction which did not exist at the
time of the original sentence would not violate the
principles of double jeopardy, since defendant already
had been sentenced to death at the conclusion of the first
sentencing phase and the only change was that an
additional aggravating circumstance was submitted to
the jury for its consideration at the resentencing trial.
In State v. Crouch, 225 N.J. Super. 100 (App. Div.
1988), defendant was convicted of first degree robbery
and aggravated assault. Upon sentencing, the conviction
for aggravated assault was merged into the conviction for
first-degree robbery. Following a grant of post-
conviction relief, the case was remanded to the trial court
for resentencing. At resentencing, the court realized that
it had improperly merged the assault into the robbery
convictions, unmerged them, and sentenced defendant
to two consecutive terms. On appeal, defendant argued
that double jeopardy prevented the unmerging as well as
defendant’s new sentence. The Appellate Division
disagreed and held that the principles of double jeopardy
do not prevent the correction of inadvertent errors at
sentencing, especially when it is defendant’s appeal.
Thus, defendant could have had no legitimate
expectations of finality with respect to his original
sentence.In State v. Bowen, 224 N.J. Super. 263 (App. Div.
1988), defendant, a pedophile with an extensive criminal
history, appealed his resentencing, which had been
ordered when defendant was found not to be amenable to
treatment as a sex offender. Based upon defendant’s lack
of amenability to treatment, the Commissioner of the
Department of Corrections ordered his transfer to the
general prison population. At defendant’s resentencing,
the sentences for certain offenses increased but the
maximum amount of time which defendant was to spend
in prison did not increase. On appeal, the Appellate
Division held that defendant’s resentence did not have
the net effect of enhancing the aggregate maximum term
which was initially imposed.State v. Koedatich, 118 N.J. 513 (1990), held that as
long as there is sufficient evidence in the record to sustain
a death sentence, double jeopardy principles do not bar
at resentencing evidence of aggravating factors that the
jury did not find unanimously to exist at the first trial. In
reaching this conclusion , the Court rejected defendant’s
contention that the jury’s failure to find an aggravating
factor at the first trial amounted to an “acquittal” of that
factor.