(concurring):
I am in accord with the result reached by the majority opinion but I am disturbed about one aspect of the reasoning used to distinguish North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). I agree that it is proper to distinguish the Pearce ease on the ground that in, the present case, unlike Pearce, the appellant was tried on the original more serious charge and therefore a more severe sentence can be justified. I do not believe, however, that it is either necessary or appropriate to go beyond this point and advance a theory that the guilty plea situation, because it represents a bargain between the defendant and the prosecutor, ipso facto requires the application of different legal principles. The basis for my concern is the companion case to Pearce, Simpson v. Rice, which involved a situation where the petitioner successfully challenged not his trial but the adequacy of his guilty plea. Although, unlike the present ease, he was later tried for exactly the same offense to which he had earlier pleaded guilty, it is reasonable to assume that Rice had been promised a lower sentence as a part of the plea bargain. Nevertheless, the Court treated the Rice case in precisely the same manner as Pearce. 395 U.S. at 726, 89 S.Ct. 2072. The fact that Rice had reneged on his part of the plea bargain did not prevent the Court from giving him the benefit of the lower sentence which had previously been imposed upon him. It seems to me that the Rice case forecloses us from holding that the fact that the defendant succeeded in “revoking his part of the bargain” alone justifies a departure from the principles announced in Pearce.
I would thus distinguish the instant case from Pearce solely on the narrow ground .that retrial here was had on the original higher charge.