736
Stevens, J., dissenting
opinion for the Court in Burks v. United States, Chief Justice Burger emphasized this critical difference, i. e., "between reversals due to trial error and those resulting from evidentiary insufficiency." Id., at 15. He specifically noted "that the failure to make this distinction has contributed substantially to the present state of conceptual confusion existing in this area of the law," ibid., and concluded that in order to hold, as we did, "that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient," it was necessary to overrule several prior cases, id., at 18. The Court's opinion today reflects the same failure to recognize the critical importance of this distinction.
I agree that California's decision to "implement procedural safeguards to protect defendants who may face dramatic increases in their sentences as a result of recidivism enhancements," ante, at 734, should not create a constitutional obligation that would not otherwise exist. But the fact that so many States have done so—not just recently, but for many years 5—is powerful evidence that they were simply responding to the traditional understanding of fundamental fairness that produced decisions such as In re Winship, 397 U. S. 358 (1970),6 and Mullaney v. Wilbur, 421 U. S. 684
Court of Appeals may increase the sentence only if the trial court has abused its discretion or employed unlawful procedures or made clearly erroneous findings. The appellate court thus is empowered to correct only a legal error" (emphasis added)); Bozza v. United States, 330 U. S. 160, 166-167 (1947) (error of law that infects a sentence may be corrected on appeal).
5 See, e. g., cases cited in Annot., 58 A. L. R. 59-62 (1929); cases cited in Almendarez-Torres v. United States, 523 U. S. 224, 256-257 (1998) (Scalia, J., dissenting); see also ante, at 734 ("Many States have chosen to implement procedural safeguards to protect defendants who may face dramatic increases in their sentences as a result of recidivism enhancements").
6 In Winship, despite the fact that the Court had never held "that proof beyond a reasonable doubt is either expressly or impliedly commanded by any provision of the Constitution," 397 U. S., at 377 (Black, J., dissenting), the traditional importance of that standard that dated "at least from our
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