Cite as: 537 U. S. 101 (2003)
Opinion of the Court
deliberated without reaching a decision on death or life, and without making any findings regarding aggravating or mitigating circumstances. After 31/2 hours the judge dismissed the jury as hung and entered a life sentence in accordance with Pennsylvania law. As explained, supra, at 109-110, neither judge nor jury "acquitted" petitioner of the greater offense of "first-degree murder plus aggravating circumstance(s)." Thus, when petitioner appealed and succeeded in invalidating his conviction of the lesser offense, there was no double-jeopardy bar to Pennsylvania's retrying petitioner on both the lesser and the greater offense; his "jeopardy" never terminated with respect to either. Cf. Green v. United States, 355 U. S. 184, 189 (1957) (citing United States v. Ball, 163 U. S. 662 (1896)); Selvester v. United States, 170 U. S. 262, 269 (1898).
IV
The dissent reads the Court's decision in United States v. Scott, 437 U. S. 82 (1978), as supporting the proposition that where, as here, a defendant's "case was fully tried and the court, on its own motion, entered a final judgment—a life sentence—terminating the trial proceedings," post, at 126 (opinion of Ginsburg, J.), the Double Jeopardy Clause bars retrial. There are several problems with this reasoning.
First, it is an understatement to say that "Scott . . . did not home in on a case like [petitioner's]," post, at 123. The statement upon which the dissent relies—that double jeopardy "may" attach when the "trial judge terminates the proceedings favorably to the defendant on a basis not related to factual guilt or innocence," 437 U. S., at 92, at least where the defendant "had either been found not guilty or . . . had at least insisted on having the issue of guilt submitted to the first trier of fact," id., at 96 (emphasis added)—was nothing more than dictum, and a tentative one ("may") at that. It would be a thin reed on which to rest a hitherto unknown constitutional prohibition of the entirely rational course of
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