How have courts dealt with double jeopardy in sentencing matters?

1 The judgment from which defendant appeals is actually the result of the third sentencing hearing in this matter. On resentencing in the second hearing the trial court imposed the upper term of five years as the principal term, but later misspoke itself and stated it was imposing the middle term of three years. When the discrepancy was called to the court's attention the court concluded the error was judicial and could not be corrected. Upon the People's petition we concluded the error was clerical and was subject to correction. We issued a peremptory writ of mandate directing the trial court to recall and resentence defendant in accordance with its true sentencing intention. (People v. Superior Court (Savala) 3 Civil 21664, peremptory writ issued June 29, 1982.) On recall the sentence from which defendant appeals was imposed.

2 In Bullington v. Missouri (1981) 451 U.S. 430, 446 [101 S.Ct. 1852, 1862, 68 L.Ed.2d 270, 283], the court did apply double jeopardy principles to a sentencing matter, however, the court made clear that it did so because of the peculiar nature of a bifurcated death penalty trial under Missouri law. In short, the penalty phase there was an actual trial and the jury's determination that the defendant should not be sentenced to death operated like an "acquittal" on that issue.

3 People v. Collins (1978) 21 Cal.3d 208, 145 Cal.Rptr. 686, 577 P.2d 1026, and In re Blessing (1982) 129 Cal.App.3d 1026, 181 Cal.Rptr. 590, were concerned with plea bargaining situations in which the favorable results were obtained through a misconception as to the legality of the overall result. No different result should obtain where the favorable aspect of the previous sentence was the result of the trial court's misconception of the legality of the overall sentence to be imposed.