Cite as: 524 U. S. 721 (1998)
Stevens, J., dissenting
ing." Burks v. United States, 437 U. S. 1, 11 (1978).1 Today, the Court ignores this cardinal principle. In this case, the prosecution attempted to prove that petitioner had previously been convicted of a qualifying felony. If the prosecution had proved this fact, petitioner would have automatically been sentenced to an additional five years in prison.2 The prosecution, however, failed to prove its case.3 Consequently, the Double Jeopardy Clause prohibits a " 'second bite at the apple.' " Id., at 17.
Until today, the Court has never held that a retrial or re-sentencing is permissible when the evidence in the first proceeding was insufficient; instead, the Court has consistently drawn a line between insufficiency of the evidence and legal errors that infect the first proceeding.4 In his unanimous
1 See also, e. g., Poland v. Arizona, 476 U. S. 147, 152 (1986) (reprosecution or resentencing prohibited whenever "a jury agrees or an appellate court decides that the prosecution has not proved its case" (internal quotation marks omitted)); cf. Schiro v. Farley, 510 U. S. 222, 231-232 (1994) ("The state is entitled to 'one fair opportunity' to prosecute a defendant, . . . and that opportunity extends not only to prosecution at the guilt phase, but also to present evidence at an ensuing sentencing proceeding").
2 The finding of this fact would have also increased petitioner's sentencing range. See Cal. Health & Safety Code Ann. § 11361(a) (West 1991). This case, then, is factually different from Caspari v. Bohlen, 510 U. S. 383, 386-387 (1994), as the factual finding in that case did not automatically increase the respondent's sentence or affect his sentencing range.
3 The California appellate court concluded that "[t]here was insufficient evidence that [petitioner] suffered a prior felony conviction" within the meaning of the "three-strikes" law. App. 41 (emphasis omitted). It is immaterial, of course, that this determination was made by an appellate court rather than by the trial judge or jury. Burks v. United States, 437 U. S. 1, 11 (1978). The State concedes that the evidence was insufficient.
4 See, e. g., Poland, 476 U. S., at 154 ("[The Arizona Supreme Court] did not hold that the prosecution had failed to prove its case . . . . Indeed, the court clearly indicated that there had been no such failure by remarking that 'the trial court mistook the law when it did not find that the defendants [satisfied the disputed aggravator]' "); United States v. Di-Francesco, 449 U. S. 117, 141 (1980) ("The federal statute specifies that the
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