488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988)
Johnny Lee Nelson pleaded guilty in Arkansas state court to burglary, a class B felony, and misdemeanor theft.1 At his sentencing hearing, the State introduced certified copies of four prior felony convictions.2 One of these convictions, from 1960 for assault with intent to rape, had been pardoned by Governor Orval E. Faubus in 1964, a fact unknown to the prosecutor and defense counsel at the time.3
During cross-examination, Nelson indicated his belief that the conviction had been pardoned.4 After the prosecutor suggested it might have been a commutation and the court questioned Nelson, the matter was not pursued further.5 The jury determined that the State had proved four prior convictions and imposed an enhanced sentence of 20 years.6 State courts upheld the sentence on direct and collateral review.7
Nelson later filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas.8 Following an investigation that confirmed the pardon, the District Court declared the enhanced sentence invalid.9 The State announced its intention to resentence respondent as a habitual offender, using another prior conviction not offered or admitted at the initial sentencing hearing, and respondent interposed a claim of double jeopardy.10
After hearing arguments from counsel, the District Court decided that the Double Jeopardy Clause prevented the State from attempting to resentence respondent as a habitual offender on the burglary charge.11 The Court of Appeals for the Eighth Circuit affirmed.12 The Supreme Court granted certiorari to review this interpretation of the Double Jeopardy Clause.13
Whether the Double Jeopardy Clause precludes retrial when a reviewing court sets aside a conviction because evidence was erroneously admitted and concludes that the remaining evidence is insufficient to support the conviction?14
The Double Jeopardy Clause permits retrial after a conviction is reversed for trial error, including the erroneous admission of evidence, provided that the evidence admitted at trial, even if later found inadmissible, was sufficient to support the conviction.15 This follows from the distinction in Burks v. United States between reversals for evidentiary insufficiency, which bar retrial, and reversals for trial error, which do not.16 A reviewing court must consider all evidence admitted by the trial court in determining whether retrial is permissible.17
No. The reversal here was for trial error because the trial court admitted without objection a certified copy of Nelson's pardoned conviction at the sentencing hearing after his guilty plea to burglary, and with that evidence along with the other three convictions the State proved four prior convictions sufficient under Ark. Stat. Ann. § 41-1003 to support the jury's imposition of the enhanced sentence.18
The pardon rendered the conviction a nullity under state law but did not deprive the certified copy of that conviction of its probative value under the statute, and since the admitted evidence would have sustained the enhanced sentence the Double Jeopardy Clause does not bar the State from retrying Nelson as a habitual offender using an additional prior conviction.19
The Double Jeopardy Clause does not preclude the State from resentencing respondent as a habitual offender.20
Related opinions on this issue
Justice Marshall dissented, arguing that under Arkansas law a pardoned conviction has no probative value in sentence enhancement proceedings, as established in Duncan v. State.21 Therefore, the State's evidence was insufficient from the outset to prove four valid prior convictions, making this a Burks insufficiency case rather than trial error.22 He contended that allowing retrial would permit the State to supply evidence it failed to muster initially, violating the Double Jeopardy Clause's protection against successive attempts at conviction.23