Litschewski v. Dooley, No. 15-1044 (8th Cir. 2015)
Annotate this CaseLitschewski was convicted of three child sex crimes. Separate judgments of conviction were entered for each offense. Litschewski was sentenced to serve three consecutive terms of imprisonment. The South Dakota Supreme Court reversed the sentences because state law required multiple sentences to be ordered chronologically according to the time of each offense. On remand the trial court rearranged the sentences, crediting all the time that Litschewski had served on count one toward his sentences for the later offenses and not increasing the total term of imprisonment. Litschewski asserted that he had served his entire 7.5 year sentence on count one before the rearrangement, so that the order technically required him to serve his sentence on count one a second time. The state supreme court affirmed. Litschewski filed suit under 28 U.S.C. 2254, alleging that his rearranged sentences imposed multiple punishments for the same offense, violating the double jeopardy clause. The district court vacated one sentence. The Eighth Circuit reversed and remanded. The "Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Supreme Court precedent provides a "reasonable basis" for fair-minded jurists to disagree on the correctness of the state court's chronological rearrangement.
Court Description: Murphy, Author, with Riley, Chief Judge, and Melloy, Circuit Judge] Prisoner case - Habeas. The district court erred in finding that the state court decision rearranging the order in which plaintiff served his three consecutive sentences resulted in a violation of plaintiff's double jeopardy rights; the state court credited plaintiff with the time he had served and he was still serving a sentence authorized by the state legislature. [ July 08, 2015
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