Greater severity of petitioner's second sentence, as Court
learned after granting certiorari on issue of retroactivity of
North Carolina v. Pearce, 395 U.
, was based on petitioner's conduct (specifically
referred to at resentencing) after the first sentencing; writ is
therefore dismissed as improvidently granted.
403 F.2d 45, certiorari dismissed.
A writ of certiorari was granted in this case on June 22, 1970,
399 U.S. 904, limited to the question of the retroactivity of our
decision in North Carolina v. Pearce, 395 U.
. Since the granting of the writ there has come to
the attention of the Court an order of Judge McRae of the United
States District Court for the Middle District of Florida, dated
July 1, 1970, denying a motion of petitioner Odom to set aside his
second sentence as illegally imposed under Pearce, supra.
The order makes it clear that the greater severity of the second
sentence was based on conduct on the part of the petitioner
occurring after the time of the original sentencing proceeding, and
that the new information was specifically referred to at
resentencing. Since it is now apparent that this case does not
present the issue of the retroactivity of North Carolina v.
the writ is dismissed as improvidently
MR. JUSTICE DOUGLAS.
The question is whether North Carolina v. Pearce,
395 U. S. 711
should be retroactive. In that case, we said that
"the factual data upon which the increased
Page 400 U. S. 24
sentence is based must be made part of the record, so that the
constitutional legitimacy of the increased sentence may be fully
reviewed on appeal."
at 395 U. S. 726
The information now reported to us by the District Court was never
made a part of the record. Hence, an issue of retroactivity of
Pearce is present and I would decide the case on the merits.