This court, unlike our federal counterpart, has not, to date, recognized a fundamental right under our state constitution that was not either explicitly enumerated or implied by virtue of the due process guarantee of article first, § 9. See State v. Ross, supra, 230 Conn. 246 (cruel and unusual punishment prohibited by due process clause); Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962) (common law rule against double jeopardy "necessary to the due process guaranteed by article first, § 9, of our constitution"). As noted above, the plaintiffs concede that the right for which they advocate is not explicitly enumerated elsewhere in the constitution.
(185 N.E.2d at p. 740 [12].) On all fours with Hicks is Kohlfuss v. Warden of Connecticut State Prison (1962) 149 Conn. 692 [ 183 A.2d 626], in which the Supreme Court of Errors of Connecticut held that a defendant had not been subjected to double jeopardy when the minimum term of imprisonment specified in his sentence was ordered increased in a review thereof sought by him. The court in its opinion relied on Stroud v. United States (1919) supra, 251 U.S. 15 [40 S.Ct. 50, 64 L.Ed. 103], and Murphy v. Massachusetts (1900) supra, 177 U.S. 155 [20 S.Ct. 639, 44 L.Ed. 711], and dismissed Green v. United States (1957) supra, 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119], as being "clearly distinguishable from the case at bar."
While there is no explicit prohibition against double jeopardy in the Connecticut constitution, we have held that the due process clause of article first, § 9, impliedly contains such protection. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962). The following facts and procedural history are undisputed.
Despite the absence of an express constitutional provision on the subject, we held that our due process clause impliedly includes a right to protection against double jeopardy, because protection against double jeopardy was recognized as a fundamental right in the common law of this state. State v. Rawls, 198 Conn. 111, 113 n. 3, 502 A.2d 374 (1985); Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962); see also E. Peters, "Common Law Antecedents of Constitutional Law in Connecticut," 53 Alb. L. Rev. 259 (1989). Applying the same analysis to this case, we are persuaded that our due process clauses impliedly prohibit punishment that is cruel and unusual.
In addition, although the Connecticut constitution contains no explicit provision against double jeopardy, our cases have recognized a common-law constitutional principle to the same effect. State v. Langley, 156 Conn. 598, 600-601, 244 A.2d 366 (1968); Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962). The defendant's argument, however, fails to take into account an established exception to the traditional double jeopardy rule, that an illegal sentence may be corrected by the court imposing it, under specified conditions, even if the defendant receives an increased punishment and has already commenced serving the original term of imprisonment. Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed.2d 818 (1947); United States v. Allen, 588 F.2d 183, 185 (5th Cir. 1979); Breest v. Helgemoe, 579 F.2d 95, 99 (1st Cir. 1978); Llerena v. United States, 508 F.2d 78, 80-81 (5th Cir. 1975).
The constitution of Connecticut has never contained a provision against double jeopardy such as that found in article five of the amendments to the constitution of the United States. Conn. Const. 1965, art. I; Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235; State v. Palko, 122 Conn. 529, 538, 191 A. 320; State v. Muolo, 118 Conn. 373, 381, 172 A. 875. Nevertheless, this court has long recognized as a fundamental principle of common law that no one shall be put in jeopardy more than once for the same offense.
In the federal regime, the matter of credit is governed by statute, 18 U.S.C. § 3568. Most States do permit increased sentencing on retrial without limit, Ex parte Barnes, 44 Ala. App. 329, 208 So.2d 238 (1968); Kohlfuss v. Warden of Connecticut State Prison, 149 Conn. 692, 183 A.2d 626 (1962); Bohannon v. District of Columbia, 99 A.2d 647 (D.C. Mun. Ct. App. 1953); Salisbury v. Grimes, 223 Ga. 776, 158 S.E.2d 412 (1967); State v. Kneeskern, 203 Iowa 929, 210 N.W. 465 (1926); State v. Morgan, 145 La. 585, 82 So. 711 (1919); State v. Young, 200 Kan. 20, 434 P.2d 820 (1967); Hobbs v. State, 231 Md. 533, 191 A.2d 238 (1963); Moon v. State, 250 Md. 468, 243 A.2d 564 (1968); Hicks v. Commonwealth, 345 Mass. 89, 185 N.E.2d 739 (1962); Sanders v. State, 239 Miss. 874, 125 So.2d 923 (1961); Commonwealth ex rel. Wallace v. Burke, 169 Pa. Super. 633, 84 A.2d 254 (1951); State v. Squires, 248 S.C. 239, 149 S.E.2d 601 (1966). Some States go so far as to deny credit against the new sentence for time already served in prison under the former one.
Conn.Gen.Stat.Ann. §§ 51-194 to -197 (1960); Maine Pub. Laws. tit. 15, §§ 2141-2144 (Cum.Supp. 1970). The constitutionality of the Connecticut statute was upheld in Kohlfuss v. Warden, 149 Conn. 692, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962). According to ABA Standards, Appellate Review of Sentences 67-158 (Approved Draft, 1968), the following states do not allow review panels to impose more severe sentences: Arizona, Florida, Hawaii, Illinois, Iowa, Nebraska, New York, Oregon, and Tennessee. Military courts are similarly restricted.
This rule is followed by numerous federal and state courts. United States ex rel. Starner v. Russell, 3d Cir. 1967, 378 F.2d 803; Robinson v. United States, 6th Cir. 1944, 144 F.2d 392; Shear v. Boles, N.D.West Va. 1967, 263 F. Supp. 855; Kohlfuss v. Warden of Connecticut State Prison, 149 Conn. 692, 183 A.2d 626 (1962); Mann v. State, 23 Fla. 610, 3 So. 207 (1887); State v. Morgan, 145 La. 585, 82 So. 711 (1919). Evidence that defendants consistently received an increased sentence on remand suggested improper conduct by trial judges.
Where it appears that due process has been abridged, the fourteenth amendment then may operate to extend to the states the privileges accorded by the fifth amendment, in order to preserve those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' Palko v. State of Connecticut, supra, 302 U.S. at 328, 58 S.Ct. at 153, Kohlfuss v. Warden, 149 Conn. 692, 183 A.2d 626 (1962), cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235. '* * * nor shall any State deprive any person of life, liberty, or property, without due process of law; * * *.' Amend. 14, U.S.Const.