with whom GIBSON, FAGG and WOLLMAN, Circuit Judges, join, dissenting.
I dissent from the holding of the Court that the double jeopardy clause has been violated in this case. The result of the Court’s decision is that Thomas, who was convicted of attempted robbery and felony murder and originally sentenced to consecutive prison terms of fifteen years and life, will be released immediately, having served only seven years of his fifteen-year sentence on the attempted robbery conviction. He will go free on the basis of a series of fortuitous events. Because the governor commuted Thomas’s attempted robbery sentence before the state trial court was able to vacate it in accordance with the holding (several years after Thomas’s conviction) of the Missouri Supreme Court in State v. Morgan, 612 S.W.2d 1 (Mo.1981) (en banc) (prohibiting imposition of sentences on both felony murder and the underlying felony), the Court finds that Thomas cannot be required to serve the life *1343sentence on his felony murder conviction.1 I respectfully disagree.
In vacating the felony murder sentence because Thomas has served the commuted sentence for attempted robbery, the Court relies upon dicta in Holbrook v. United States, 136 F.2d 649, 652 (8th Cir.1943), which suggests that if one of two consecutive sentences has been served, and the Court must vacate one of those sentences, then Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873), controls and requires the uncompleted sentence to be vacated and the prisoner to be released. I disagree with the dicta in Holbrook and find the Court’s reliance on Lange and In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943) to be misplaced.2
In both Lange and Bradley, the sentencing court simultaneously imposed both a fine and imprisonment for a single offense, although at the time of sentencing only one of those two alternative punishments could properly be imposed under the applicable statute. By the time the sentencing judge discovered his mistake, the defendant already had paid the fine. Because the nature of the alternative punishments was different, and because the fine and imprisonment were unauthorized cumulative punishments for a single statutory offense, the Supreme Court held in each case that the double jeopardy clause was implicated. As the Court noted in Lange, reimposition of the year-long prison sentence following payment of the fine and five days in jail would result in more punishment than was authorized by statute. It stated:
The court, through inadvertence, imposed both punishments, when it could rightfully impose but one. After the fine was paid and passed into the treasury, and the petitioner had suffered five days of his one year’s imprisonment, the court changed its judgment by sentencing him to one year’s imprisonment from that time. If this latter sentence is enforced it follows that the prisoner in the end pays his two hundred dollars [sic] fine and is imprisoned one year and five days, being all that the first judgment imposed on him and five days’ imprisonment in addition. And this is done because the first judgment was confessedly in excess of the authority of the court.
85 U.S. (18 Wall.) at 175.
The circumstances surrounding Thomas’s conviction and sentencing are far different from those in Lange and Bradley. The illegality in the state of Missouri of imposing two sentences when a defendant has been convicted of both felony murder and an underlying felony was not established until 1981. Thomas was sentenced in 1973. At that time, the sentencing court could not possibly have known that its imposition of *1344a sentence for each conviction would later be found unlawful. Moreover, the two sentences were not alternative statutory punishments for one offense. Rather, they were two separate statutory punishments for two separate offenses. Finally, the two punishments were of the same nature — imprisonment — and thus were interchangeable, whereas the punishments in Lange and Bradley were not.3
The double jeopardy clause “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed. 2d 656 (1969). In Pearce, the Supreme Court interpreted this language to mandate that, when resentencing is required following a new trial, time already served under the old sentence be credited toward the new sentence. The state trial court’s order in the present case, vacating the attempted robbery sentence and crediting the time already served thereunder toward the life sentence for felony murder, is responsive to Thomas’s claim that he cannot be twice punished for the same offense. In accordance with State v. Morgan, Thomas is serving only the sentence imposed on one of his two original convictions. Thomas’s felony murder sentence is not increased by this order, and the result is in accord with the holding in Pearce. Thomas correctly asserts that the double jeopardy clause prohibits the State from requiring him to serve both sentences. However, the double jeopardy clause does not require that Thomas be given the choice of which of two simultaneously imposed prison sentences he is to serve when it transpires that he cannot be made to serve both.4
The Court’s double jeopardy holding in the present case, when viewed together with earlier Eighth Circuit precedent, produces strangely anomalous results. First, in today’s holding the Court ignores Eighth Circuit precedent establishing that the intention of the sentencing judge is the determinative factor in deciding which of two sentences to vacate when both sentences cannot stand together. Jones v. United States, 396 F.2d 66, 69 (8th Cir.1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 695, 21 L.Ed.2d 697 (1969); Sawyer v. United States, 312 F.2d 24, 27-29 (8th Cir.), cert. denied, 374 U.S. 837, 83 S.Ct. 1888, 10 L.Ed.2d 1058 (1963); see also United States v. Pietras, 501 F.2d 182, 188 (8th Cir.), cert. denied, 419 U.S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668 (1974). Today’s holding dictates that decisive weight be placed upon the order in which the sentences were imposed; i.e., that the sentencing judge first sentenced Thomas on Count I to a 15-year term for attempted robbery, and thereafter on Count II to a consecutive life sentence for felony murder. Under the Court’s analysis, Thomas’s claim of double jeopardy would be baseless if the sentencing judge had simply reversed the order in which the prison sentences were to be served. See Holbrook, 136 F.2d at 652. Surely the question of whether a convicted *1345murderer is to serve the life term that the sentencing authority plainly intended he was to serve should not be decided on a basis so essentially whimsical. As the Supreme Court remarked in Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818 (1947), “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” The Court also rejected the sporting game approach to double jeopardy in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). In Green, the defendant argued that, when the trial court imposed two sentences for the same offense, the court lost its power to sentence further once it had issued the first sentence, and therefore that only the first, shorter sentence was valid. The Court responded that it was the intention of the trial judge and not the order of sentencing that was to govern:
Although petitioner is technically correct that sentences should not have been imposed on both counts, the remedy which he seeks does not follow. This is not a case where sentence was passed on two counts stating alternative means of committing one offense; rather, the third count involved additional characteristics which made the offense an aggravated one — namely, putting persons in jeopardy of life by use of a dangerous weapon. Plainly enough, the intention of the district judge was to impose the maximum sentence of twenty-five years for aggravated bank robbery, and the formal defect in his procedure should not vitiate his considered judgment.
365 U.S. at 306, 81 S.Ct. at 656.
I believe that similar logic applies in the present case. The original error in sentencing Thomas was made in good faith reliance on existing Missouri law. The subsequent change in Missouri law and the ensuing commutation of the attempted robbery sentence should not be available to Thomas as a basis for nullifying the felony murder sentence. In vacating the attempted robbery sentence, the state trial court vindicated what clearly would have been the intent of the sentencing court had the illegality of the double sentencing been apparent at the time of sentencing. The law of Missouri authorizes a life sentence for felony murder and it is clear that the sentencing court intended that Thomas should serve a life sentence. In these circumstances, it is little short of preposterous that the sequence in which the consecutive sentences were pronounced should provide a basis for Thomas’s early release.
The extreme hypertechnicality of today’s decision is illustrated further by the point that had Thomas been sentenced to concurrent, rather than consecutive, sentences of fifteen years and life imprisonment, commutation .of the fifteen-year sentence would not provide a basis for his early release on double jeopardy grounds. In keeping with United States v. Leather, 271 F.2d 80 (7th Cir.1959), cert. denied, 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525 (1960), this Circuit held in Hardy v. United States, 292 F.2d 192 (8th Cir.1961), that completion of the shorter of two concurrent sentences does not excuse the prisoner from serving the longer of those sentences when one of them must be invalidated. The Court stated:
[T]he right of the court in such a situation to simply vacate the shorter sentence and allow the longer one to stand has been recognized. Appellant argues, however, that here his 10-year sentence had been served, so that there was no right to vacate it, and that consequently only the 20-year sentence was capable of being set aside. A similar situation and contention were involved in United States v. Leather ... where the court held that the longer sentence standing on the record would legally constitute the measure or the term of the punishment in the situation, unless the trial court saw fit to vacate it, and that the shorter concurrent sentence thus would, while the two sentences stood together, have incidence only in relation to this controlling measure or term of his punishment. *1346The court accordingly upheld the right of the trial court in that case, as here, to vacate the shorter sentence, even though the defendant had by that time been confined for a period equal to its length.... We are in agreement with the Leather case.
Id. at 194-95. In today’s decision, the Court fails to offer any coherent reason for its conclusion that the consecutive rather than concurrent nature of Thomas’s prison sentences breathes life into a double jeopardy claim that otherwise would have been dead on arrival.
In addition, the Court’s decision brings about yet another anomalous result. When one of two prison sentences must be vacated, and the shorter of the two already has been served, today’s decision has the unfortunate result of stripping the sentencing judge of authority to determine which sentence to vacate when the sentences are consecutive, while leaving the sentencing judge with such authority unfettered when the sentences are concurrent. This result defies logical explanation. The more serious crimes deserve more severe punishment, and, as a general proposition, the more reprehensible the crimes, the more likely it is that the sentencing judge will impose consecutive prison sentences on the separate counts of which the defendant is convicted. The Court offers no constitutional theory to justify the anomaly it thus creates.
I believe that release of Thomas on double jeopardy grounds is not required by either Supreme Court precedent or the law of this Circuit, much less by the language of the double jeopardy clause itself. Release of a prisoner properly convicted of both attempted robbery and felony murder after service of only the sentence on the attempted robbery conviction removes logic and judicial control from the sentencing process. Plainly, if the decision in State v. Morgan had been handed down before Thomas’s sentencing, the sentencing court would have sentenced him on the more serious of the two convictions and would have imposed only the life sentence for the felony murder. This is not, as in Lange, a situation in which the judge, having clear precedent or statutory guidance before him, mistook his authority to impose cumulative sentences. Instead, this is a case in which the law changed long after the sentencing occurred. Thomas seeks to take advantage of that change and to gain his early release on the basis of an argument that mocks and trivializes the double jeopardy clause’s important purpose of preventing multiple punishments for a single crime. Under the sentencing order to which Thomas presently is subject, he would suffer only one punishment: the life sentence for felony murder. The time he already has served on the fifteen-year sentence for attempted robbery would count toward his completion of the life sentence. He therefore would serve in total not one day more than the period of confinement that a life sentence entails. I cannot agree that requiring him to serve this properly imposed sentence offends the double jeopardy clause. Accordingly, I would affirm the order of the District Court.
In addition, I continue to believe that, if a double jeopardy violation is found, the prosecution should be afforded an opportunity to cure the violation by returning to the state trial court for proceedings consistent with Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986). I will not repeat here what already has been said on this matter in the panel opinion. See Thomas v. Morris, 816 F.2d 364, 370-71 (8th Cir.1987).
. Under today’s decision, Thomas effectively slips through a judicially manufactured crack in the criminal justice system, even though his early release contravenes not only the intent of the sentencing court, but also the intent of the Missouri legislature as expressed in the current statutory punishment for felony murder. In 1984, the Missouri legislature revised the statutory treatment of felony murder, with the result that State v. Morgan, and State v. Olds, 603 S.W.2d 501 (Mo.1980) (en banc), which looked to legislative intent to determine that the double jeopardy clause was offended by the imposition of sentences for both felony murder and the underlying felony, are no longer a valid statement of that intent. Murder in the second degree, of which felony murder is one example, is now classified as "a class A felony, and the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter.” Mo.Rev.Stat. § 565.021(2) (Supp.1984). Thus, if Thomas were convicted today, and the same sentences were imposed, then under Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Court would have to find that the double jeopardy clause had not been violated. Thomas’s sentences for both attempted robbery and felony murder would stand.
. Indeed, the concurring opinion in Holbrook notes that up to that time, no circuit court of appeals had found Lange to be applicable beyond its narrow facts, i.e., in the situation of "statutory alternative sentences” for the same offense. Holbrook, 136 F.2d at 653 (Stone, J., concurring). This is not such a case. Rather, it is a case in which Thomas was sentenced for two separate offenses, with the Missouri Supreme Court deciding long after the fact that he could be sentenced for one or the other, but not both.
. These factors also distinguish the present case from United States v. Holmes, 822 F.2d 481 (5th Cir.1987), in which the statute under which the defendant had pleaded guilty authorized either a fine or imprisonment, but not both.
United States v. Edick, 603 F.2d 772 (9th Cir.1979), is similarly distinguishable from the present case, since in Edick the punishments imposed were alternative statutory punishments and were not interchangeable. Edick was sentenced to imprisonment for three years on Count I and to a consecutive five year term of probation on Count II. The Ninth Circuit stated:
Here, the trial court’s error was to subject Edick to two punishments when ... only one was authorized. Either prison time or probation was valid under the statutory alternatives, but, to avoid an illegal cumulation of punishment, the sentences had to be imposed concurrently. Manifestly, prison time and probation cannot be served concurrently.
Id. at 777.
. The Fifth Circuit has held accordingly, remanding the case for vacation of the shorter of two consecutive sentences after it had been fully served. Rollins v. United States, 543 F.2d 574 (5th Cir.1976); cf. United States v. Hodges, 628 F.2d 350, 353 (5th Cir.1980) ("This Court has consistently held that resentencing to the maximum penalty authorized by law is permitted when the aggregate of the illegally imposed consecutive sentences equals or exceeds the maximum for which the court lawfully could have sentenced the defendant.”).