
    STATE of Louisiana v. Edwin MOORE.
    No. 56427.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Edwin Moore applying for writs of certiorari, prohibition and mandamus.

Application denied.

TATE, J.,

dissents. The defendant, a 15-year-old juvenile, pleaded guilty to second degree murder, a non-capital offense. This voluntary plea, whatever its consequences and whatever the lack of jurisdiction of the district court to impose a penitentiary sentence on this juvenile, forbids his being tried again on the indictment for first degree murder, a capital offense. As the dissent in this case at 309 So.2d 675 (La.1975) shows, double jeopardy and due process principles prevent the relator’s successful annulment of an invalid penitentiary sentence by post-conviction proceedings to subject him now to trial for a capital offense. He cannot be punished more severely than before because of his invalidation of an illegal sentence.

DIXON, J., concurs in the denial for the reasons that jeopardy did not attach in the first trial, (C.Cr.P. 592) and even if convicted, applicant cannot receive a greater sentence than that previously imposed.

CALOGERO, J., dissents from the refusal to grant writs.  