Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

MEMORANDUM^** 

Jose Martinez, an Idaho state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus. Martinez contends that the trial court subjected him to double jeopardy by enhancing his sentence for possession of stolen goods at his resentencing hearing. We affirm.

A jury convicted Martinez for possession of stolen property in violation of Idaho Code Sec. 18-4612, and found him to be a persistent violator as defined in Idaho Code Sec. 19-2514. At Martinez's sentencing hearing, the Idaho trial judge imposed a fixed ten-year term for the possession charge, and a consecutive indeterminate twenty-year term because Martinez was a persistent violator. Immediately following adjournment of the hearing, Martinez's attorney informed the jduge that the sentence might be illegal. The trial judge took the issue under advisement, remanded Martinez to the custody of the county sheriff, and delayed transportation of Martinez to the state penitentiary. The next day, the judge determined that section 19-2514 does not establish a separate offense, but is an enhancement provision. He therefore resentenced Martinez to a single sentence, consisting of a fixed fourteen-year term for the stolen possession charge.

Martinez contends that by resentencing him, the trial court violated his rights under the double jeopardy clause. He claims that he had already begun serving a valid sentence, the original ten-year term, for possession of stolen property.

In Lopez v. State, 108 Idaho 394, 700 P.2d 16 (1985), a case presenting very similar facts to the present one, the Supreme Court of Idaho held there was no double jeopardy violation in a decision to correct an illegal two-part sentence and pronounce a new single sentence, whose term was longer than the first part of the original sentence. The court held that where the defendant had initally been subject to a separate, and thus illegal, sentence, a corrected sentence could be pronounced under the enhancement provision. Notably, the court rejected Lopez's argument that the original sentence consisted of valid and invalid portions. The enhancement provision error rendered the entire sentence "invalid ab initio. " 700 P.2d at 18.

We note that we must accept the state court's interpretation of its own statute, but we are not bound by that court's ultimate conclusion concerning whether the punishment imposed violates the double jeopardy clause. Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir. 1986). It is well settled as a matter of federal law, however, that there is no double jeopardy bar to correcting an illegal or erroneous sentence, even though the effect is to increase the sentence. United States v. DiFrancesco, 449 U.S. 117, 134 (1980). Because the Idaho trial judge's initial sentence was invalid, we find no double jeopardy violation.

The decision of the district court is therefore AFFIRMED.