(dissenting).
I respectfully dissent. As we concluded in State v. Chauvin, 723 N.W.2d 20, 26 (Minn.2006), filed simultaneously with this opinion, the district court had the inherent authority to convene a sentencing jury under the Minnesota Sentencing Guidelines as they existed when Hankerson was tried for her crimes. The district court did not convene such a sentencing jury but, instead, itself made findings of fact to justify an upward departure in sentence. Because those factual findings were void ab initio under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the sentence initially imposed upon Hankerson was illegal.
The district court now proposes to convene a “resentencing” jury that will in effect retry Hankerson, who has been already tried, convicted, and sentenced for criminal sexual conduct, for the crime of criminal sexual conduct with aggravating factors for the same behavioral incident. The convening of a sentencing jury in this case amounts to a second prosecution on a charge greater than that of which Hanker-son has already been convicted, but may afford Hankerson none of the procedural protections, such as advance notice of the basis for seeking an aggravated sentence, given to criminal defendants to whom the court’s recent amendments to the Minnesota Rules of Criminal Procedure apply. Because the proposed “resentencing jury trial” amounts to a second prosecution of Hankerson, I would conclude that it is barred by the Double Jeopardy Clause. I would therefore reverse the district court and direct that Hankerson’s sentence be amended to no more than the presumptive guideline sentence in effect when the crimes at issue here were committed.
Appellant Dena Lyn Hankerson was charged in 2002 with criminal sexual conduct in the first, second, and fifth degrees, burglary in the first degree (two counts), terroristic threats, assault in the fifth degree, and driving after revocation, arising out of the sexual assault of a 12-year-old girl earlier that year. Nothing in the criminal complaint against Hankerson indicated that the state intended to seek an upward departure in sentencing; indeed, it was not until after the jury convicted Han-kerson that the state indicated it would seek an upward departure in sentence. Nor does it appear that the state gave Hankerson any advance notice of the specific grounds for the upward departure. Based upon the state’s arguments at the sentencing hearing, the district court sentenced Hankerson to 264 months in prison on the count of first-degree criminal sexual conduct, a 120-month upward departure from the presumptive sentence of 144 months. At sentencing, the court made these observations:
On the criminal sexual conduct, standing alone that would call for a sentence of 144 months. There are substantial and compelling circumstances justifying an upward departure. [The victim] was 12 years old, baby-sitting, and was particularly vulnerable. You used particular cruelty. You struck her on both sides of the face. You threatened to kill her. You threatened to kill the children *245in her charge. The crime involved multiple acts of penetration perpetrated against her, you forced her to penetrate you. And you used threats and coercion. That’s not an element of the crime but that’s how you pulled it off.
For those reasons on the conviction for criminal sexual conduct in the first degree I’m going to commit you to the Commissioner of Corrections for a term of 264 months. I’m adding ten years. That sentence will be served concurrently with the other sentences. You’ll be given credit for time served.
Hankerson challenged both the convictions and the sentences on appeal. The court of appeals reversed the sentence for terroristic threats because it arose out of the same behavioral incident as the sexual assault, but affirmed Hankerson’s convictions and sentences on the other charges, including criminal sexual conduct. State v. Hankerson, No. A03-131, 2004 WL 771304, at *3 (Minn.App. Apr. 13, 2004). On June 15, 2004, we denied review.
On June 24, 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Court invalidated the defendant’s aggravated sentence because it violated the Sixth Amendment as earlier interpreted by the Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Blakely, 542 U.S. at 303, 124 S.Ct. 2531. In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. As a result, according to the Blakely court, “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531. In State v. Shattuck, we held that the Minnesota Sentencing Guidelines that were in effect at the time were similarly “unconstitutional insofar as [they permit] an upward durational departure based on judicial findings.” 704 N.W.2d 131, 143 (Minn.2005).
On June 2, 2005, the legislature responded to Blakely by amending Minn.Stat. § 244.10 and the Minnesota Sentencing Guidelines to provide for sentencing juries and bifurcated trials. Act of June 2, 2005, ch. 136, art. 16, §§ 3-6, 14, 2005 Minn. Laws 901, 1115-16, 1119. The amendments to section 244.10 apply “to sentencing hearings, resentencing hearings, and sentencing departures sought on or after” the effective date of the act (June 2, 2005). §§ 3-6, 2005 Minn. Laws at 1115-16. The act also made the amendments to the sentencing guidelines effective on “the day following final enactment.” Id. at § 14, 2005 Minn. Laws at 1119.
Hankerson filed her petition for postcon-viction relief on August 15, 2005, arguing that the Supreme Court’s decision in Blakely and our decision in Shattuck required that her sentence be amended to the presumptive sentence under the sentencing guidelines of 144 months because that was “the maximum sentence authorized by the jury’s verdict alone.” The state disputed that Hankerson was entitled to the benefit of Blakely but argued that, if Blakely did apply, the district court should set the matter on for a hearing rather than simply reduce Hankerson’s sentence.1 The postconviction court de*246nied Hankerson’s request to vacate her sentence and instead set the matter on for a “resentencing jury trial.”
Hankerson filed an appeal to the court of appeals from the denial of her petition for postconviction relief. We granted accelerated review on an issue not addressed in Shattuck, namely, the effect and constitutionality of the 2005 amendments to Minn.Stat. § 244.10 and Minn. Sent. Guidelines II.D.
I.
At the time Hankerson was convicted and sentenced in 2002, Minn.Stat. § 244.10, subd. 1 (2002), read as follows:
Whenever a person is convicted of a felony, the court, upon motion of either the defendant or the state, shall hold a sentencing hearing. The hearing shall be scheduled so that the parties have adequate time to prepare and present arguments regarding the issue of sentencing. The parties may submit written arguments to the court prior to the date of the hearing and may make oral arguments before the court at the sentencing hearing. Prior to the hearing, the court shall transmit to the defendant or the defendant’s attorney and the prosecuting attorney copies of the pre-sentence investigation report.
At the conclusion of the sentencing hearing or within 20 days thereafter, the court shall issue written findings of fact and conclusions of law regarding the issues submitted by the parties, and shall enter an appropriate order.
Subdivision 2 of section 244.10 then provided that:
Whether or not a sentencing hearing is requested pursuant to subdivision 1, the district court shall make written findings of fact as to the reasons for departure from the sentencing guidelines in each case in which the court imposes or stays a sentence that deviates from the sentencing guidelines applicable to the case.
The then-effective sentencing guidelines included a “non-exclusive” list of reasons that could be used as reasons for departure, either upward or downward. Minn. Sent. Guidelines cmt. II.D.201.
As noted above, on June 24, 2004, the United States Supreme Court decided Blakely v. Washington. The Minnesota Legislature responded to Blakely by amending Minn.Stat. § 244.10 and the Minnesota Sentencing Guidelines to provide for bifurcated trials and sentencing juries. Act of June 2, 2005, ch. 136, art. 16, §§ 3-6,14, 2005 Minn. Laws 901,1115— 16, 1119. The legislature amended section 244.10 in two ways pertinent to this case. First, the legislature added subdivision 4, which provides:
In bringing a motion for an aggravated sentence, the state is not limited to factors specified in the Sentencing Guidelines provided the state provides reasonable notice to the defendant and the district court prior to sentencing of the factors on which the state intends to rely.
Minn.Stat. § 244.10, subd. 4 (Supp.2005). The legislature also added subdivision 5, which reads in pertinent part:
When the prosecutor provides reasonable notice under subdivision 4, the district court shall allow the state to prove beyond a reasonable doubt to a jury of 12 members the factors in support of the state’s request for an aggravated departure from the Sentencing Guidelines.
*247Id. at subd. 5(a). At the same time, the legislature amended Minn. Sent. Guidelines II.D to provide that
if an aggravated durational departure is to be considered, the judge must afford the accused an opportunity to have a jury trial on the additional facts that support the departure and to have the facts proved beyond a reasonable doubt. If the departure facts are proved beyond a reasonable doubt, the judge may exercise the discretion to depart from the presumptive sentence. * * * Because departures are by definition exceptions to the sentencing guidelines, the departure factors set forth in II.D are advisory only, except as otherwise established by settled case law.
As Hankerson notes, the amendments to section 244.10, applying to “sentencing hearings, resentencing hearings, and sentencing departures sought on or after” the effective date of the act, were effective on June 3, 2005. §§ 3-6, 2005 Minn. Laws at 1115-16. Similarly, the act purports to make the changes to the sentencing guidelines effective “on August 1, 2005.” But the sentencing guidelines themselves provide that any modifications to them “will be applied to offenders whose date of offense is on or after the specified modification effective date.” Minn. Sent. Guidelines III.F. As a result, even if the act purported to make the changes to the sentencing guidelines applicable to resentenc-ings for crimes committed before August 1, 2005, the sentencing guidelines themselves bar any application of those changes to offenses, like Hankerson’s, committed before August 1, 2005.
The court assumes, without explicitly deciding, that the 2005 sentencing guidelines do not apply to Hankerson on resentenc-ing. For the reasons just explained, I agree that the 2005 sentencing guidelines do not apply to Hankerson. As a result, if the district court can now convene a jury to make the factual findings necessary to resentence Hankerson to more than the presumptive sentence, it must be because it is permitted under the earlier version of the sentencing guidelines.
The sentencing guidelines in effect in 2002, when Hankerson committed the acts for which she has been convicted, neither provided for nor barred the use of a jury in sentencing. With respect to departures from the guidelines sentences, the Guidelines stated only that:
The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case. The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law. When departing from the presumptive sentence, the court should pronounce a sentence which is proportional to the severity of the offense of conviction and the extent of the offender’s prior criminal history, and should take into substantial consideration the statement of purpose and principles in Section I, above. When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.
Minn. Sent. Guidelines II.D (2004). As we held in Chauvin, the district courts had the inherent authority under the sentencing guidelines to instruct juries to make the factual findings necessary to support *248upward departures in sentences. 723 N.W.2d at 29.
I therefore agree with the court’s conclusion on the interpretation of Minn.Stat. § 244.10: nothing in the statute or the 2004 sentencing guidelines barred the district court, either now or then, from convening a sentencing jury to consider whether there were factors sufficient to warrant an upward durational departure from the presumptive sentence., But I conclude that the convening of a sentencing jury, after Hankerson has already been convicted and sentenced, places Han-kerson in jeopardy twice for the same crime and, on that point, I disagree with the court.
II.
The Double Jeopardy Clause of the United States Constitution provides that “[n]o person shall * * * be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Clause offers criminal defendants protection from . three distinct abuses: (1) “a second prosecution for the same offense after acquittal”; (2) “a second prosecution for the same offense after conviction”; and (3) “multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It is worth emphasizing that the Double Jeopardy Clause protects criminal defendants not just from multiple punishments, but multiple prosecutions, as the Supreme Court has observed: “The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.” United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). The Double Jeopardy Clause applies to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
Hankerson correctly focuses on the second type of double jeopardy abuse — a second prosecution for the same offense after conviction. Hankerson argues that her conviction of first-degree criminal sexual conduct constitutes a lesser-included offense within the offense for which the district court sought to convene a resentenc-ing jury, namely, first-degree criminal sexual conduct with aggravating factors. And it should be beyond dispute that, Hankerson having been convicted once of first-degree criminal sexual conduct, the state could not again charge and prosecute Hankerson of criminal sexual conduct, whether first-degree or any lesser degree, involving the same behavioral incident. See State v. Johnson, 273 Minn. 394, 397, 141 N.W.2d 517, 520-21 (1966); Minn.Stat. § 609.035, subd. 1 (2004) (providing that if a person’s conduct constitutes more than one offense, a conviction or acquittal of any one of them bars prosecution for any other of them).
But the court discards Hankerson’s argument essentially on grounds that the jury trial ordered by the district court for resentencing cannot amount to a “second prosecution” because a “second prosecution” can occur only if the defendant has been acquitted of the aggravating factors, or the equivalent thereof, in the first prosecution. Unless and until there has been an acquittal, according to the court, jeopardy from the first prosecution has not terminated and as a result there can be no “double” jeopardy.
There are two problems with the court’s approach on its face. First, by requiring an “acquittal” before double jeopardy applies, the court’s approach eliminates two of the three categories of protections offered by the Double Jeopardy Clause: the bar against a second prosecution after con-*249vietion, and the bar against multiple prosecutions for the same offense. Second, by requiring an “acquittal” before double jeopardy applies, the court’s approach essentially means that a guilty defendant’s jeopardy never ends, not even once a conviction is final and all appeals have been exhausted. Under that scenario, what is to prevent the state from reprosecuting a defendant ad infinitum, provided the state keeps winning?
Nevertheless, the court relies for its approach on the Supreme Court’s decision in Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). The jury found Sattazahn guilty of first-degree murder, but was deadlocked during the penalty phase on whether he should be sentenced to death or to life imprisonment. Id. at 103-04, 123 S.Ct. 732. The trial judge therefore sentenced Sattazahn to life imprisonment, as required by Pennsylvania law. Id. at 104-05, 123 S.Ct. 732. But Sattazahn’s conviction of murder was reversed on appeal and the case was remanded for a new trial. Id. at 105, 123 S.Ct. 732. On remand, the jury again found Sattazahn guilty, but this time the jury sentenced him to death. Id. On appeal to the Supreme Court, the question was whether the jury’s initial failure to sentence Sattazahn to death barred the state under the Double Jeopardy Clause from seeking the death penalty on retrial. See id. It was in this procedural context that the Court observed that in such a case,
the relevant inquiry for double-jeopardy purposes was not whether the defendant received a life sentence the first time around, but rather whether a first life sentence was an “acquittal” based on findings sufficient to establish legal entitlement to the life sentence — i.e., findings that the government failed to prove one or more aggravating circumstances beyond a reasonable doubt. Id. at 108, 123 S.Ct. 732. The Court went on to conclude that because the jury had deadlocked in the penalty phase of Satta-zahn’s first trial, there was no double-jeopardy bar to retrying Sattazahn or seeking the death penalty on retrial: the jury deadlock could not be considered an “acquittal” on the aggravating factors. Id. at 112-13,123 S.Ct. 732.
There are two critical differences between Sattazahn and this case that the court overlooks. First, Sattazahn’s conviction of murder was reversed on appeal, which allowed the state to retry him in the first place. That fact alone puts Sattazahn in a very different procedural posture than Hankerson, whose conviction was affirmed on appeal. As explained further below, that Sattazahn’s conviction was reversed on appeal allowed the district court to consider the second trial merely a continuation of the first trial as well as a continuation of the initial jeopardy. Second, the jury deadlocked in the penalty phase of Sattazahn’s first trial, which Sattazahn argued amounted to an acquittal on the aggravating factors. Therefore, the question Sattazahn presented was whether Satta-zahn’s death penalty case fell squarely into the first category of double jeopardy protection — a second prosecution after acquittal with specific reference to the death penalty.
When a defendant’s initial conviction is reversed on appeal, courts resort to a number of theories to avoid the Double Jeopardy Clause’s bar against a second prosecution and to justify retrial of the defendant. For example, some courts hold that reversal of the conviction on appeal does not terminate jeopardy. Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Other courts resort to public policy arguments to justify retrial. United States v. Tateo, 377 U.S. *250463, 466-68, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). When the court in this case holds that a resentencing jury does not amount to a “second prosecution,” the court essentially employs the first approach — that jeopardy does not terminate until there has been an acquittal — to avoid the effect of the Double Jeopardy Clause. But, again, that argument springs from cases in which the defendant’s conviction was reversed on appeal.
In contrast, again, in this case Hanker-son’s conviction of criminal sexual conduct was affirmed on appeal. As a result, regardless of the specific point at which jeopardy terminated, there should be no doubt that by the time we declined further review of her conviction on June 15, 2004 (if not before), jeopardy had terminated.2 Under no circumstances could the state have again prosecuted Hankerson for any of the crimes of which she had been convicted arising out of the same behavioral incident. Thus, Hankerson is in the second, not the first, category of cases protected by the Double Jeopardy Clause.3
I would therefore conclude that Hanker-son’s case is governed by a different line of Supreme Court jurisprudence, namely, cases in which the defendant invokes the Double Jeopardy Clause to block a second prosecution after the defendant has already been convicted of some lesser crime for the same behavioral incident.
Once a defendant is convicted and sentenced of a lesser offense, the state’s ability to prosecute the defendant for a greater offense for the same behavioral incident is greatly limited. In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held that the Double Jeopardy Clause allows for successive prosecutions for the same criminal act under two different criminal statutes when each statute requires proof *251of a fact that the other does not. But when one offense is a lesser-included offense of the other, a second prosecution is barred. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). So, for example, in Brown double jeopardy barred the state from prosecuting a defendant for auto theft who had previously pleaded guilty to taking or operating the same car without the owner’s consent because the crime to which Brown had pleaded guilty — “joyriding”—was a lesser-included offense within the greater crime of auto theft. Id. at 169, 97 S.Ct. 2221. As the Brown court observed, “courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Id. at 165, 97 S.Ct. 2221. It is irrelevant for double jeopardy purposes whether the conviction of the greater offense precedes conviction of the lesser offense or vice versa. Id. at 168, 97 S.Ct. 2221.
I conclude that the proposed “resentenc-ing jury trial” constitutes a second prosecution of Hankerson, for a greater offense for the same behavioral incident of which she has already been convicted. First, although the district court’s order does not explain the process it would follow in convening a “resentencing jury trial,” under Apprendi the resentencing jury trial must have all the hallmarks of a second prosecution. That is, due process presumably requires that witnesses at the resentencing trial testify under oath; Apprendi itself requires that any facts (other than a prior conviction) that may be used to support an upward departure from the presumptive sentence be proven beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348.
Moreover, that the proposed “resentenc-ing jury trial” involves a greater offense— criminal sexual conduct with aggravating factors — than that of which Hankerson has already been convicted was confirmed by the Supreme Court in Apprendi. There, the Court held that any fact that increases the penalty for a crime beyond the statutory maximum must be proven to a jury beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. In determining which facts must therefore be proven to the jury to warrant a harsher sentence, the Court stated that it is those facts that constitute “the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict” in the initial proceeding. Id. at 494 n. 19, 120 S.Ct. 2348. In his concurrence in Apprendi, Justice Thomas further elaborated on those facts that must be proven to a jury:
[A] “crime” includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment). Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact — of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment of a crime based on some fact — such as a fíne that is proportional to the value of stolen goods — that fact is also an element.
Id. at 501, 120 S.Ct. 2348. Thus, criminal sexual conduct with aggravating factors is an “aggravated” version of the crime of criminal sexual conduct with no aggravating factors and, conversely, the crime of criminal sexual conduct with no aggravating factors is a lesser-included offense within the crime of criminal sexual conduct with aggravating factors.
Finally, the convening of a “resentencing jury” will again place Hankerson in jeopar*252dy. Jeopardy attaches when a jury is empaneled and sworn. State v. Leroy, 604 N.W.2d 75, 77 (Minn.1999) (citing Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978)). The only apparent difference between Hankerson’s first trial and her “resentencing” trial is that Han-kerson’s guilt of criminal sexual conduct in the first degree will be beyond debate. But, in order to warrant an upward departure in sentence, the resentencing jury will by necessity have to find Hankerson guilty of criminal sexual conduct with aggravated circumstances and that will expose Han-kerson to the risk of a determination of guilt of that offense.4
The question is therefore whether, Han-kerson having been convicted and sentenced of the lesser crime of criminal sexual conduct in the first degree, the state can now prosecute Hankerson of the greater crime of criminal sexual conduct in the first degree with aggravating circumstances. I conclude it cannot.
First, nothing in section 244.10 or the sentencing guidelines, as they were promulgated at the time of the crime in 2002, barred the state from requesting the jury that convicted Hankerson, or a separate sentencing jury, to make the factual findings necessary to support an upward departure from the presumptive sentence. Nor did section 244.10 or the sentencing guidelines bar the district court from so instructing the jury or from convening a separate jury on sentencing. In other words, Hankerson could have been properly sentenced in 2002 for the greater offense of criminal sexual conduct with aggravating factors, but she was not. A second trial on the charge of criminal sexual conduct with aggravating factors therefore invokes the dangers that the Double Jeopardy Clause is intended to guard against:
*253[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
Second, I conclude that prosecuting Hankerson now for the aggravated conduct is barred under Brown, because the crime for which Hankerson has already been convicted — criminal sexual conduct — ■ is a lesser-included offense of the crime— criminal sexual conduct with aggravating factors — for which the district court seeks to convene a sentencing jury. See 432 U.S. at 166, 97 S.Ct. 2221.
Third, the convening of a “resentencing” jury violates Hankerson’s right to due process. As the Supreme Court has observed:
Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that the State may impose.
BMW of North Am., Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Those “elementary notions of fairness” are reflected, in this context, in this court’s recent amendments to the Minnesota Rules of Criminal Procedure. For example, under Minn. R.Crim. P. 7.03 (as amended in 2006), the defendant is entitled to notice at least seven days before the omnibus hearing whether the state intends to seek an aggravated sentence, and is entitled to notice of “the grounds or statutes relied upon and a summary statement of the factual basis supporting the aggravated sentence.” The amended comment to Rule 7 notes “it is important that defendants and defense counsel have adequate advance notice of the aggravated sentence allegations so that they can defend against them.” But because the amendments to the Rules of Criminal Procedure apply only to “criminal actions commenced or arrests made after 12 o’clock midnight October 1, 2006,” it is not at all clear that any of these “important” protections will apply to Hankerson.
Finally, I noted in my concurrence and dissent in State v. Shattuck, 689 N.W.2d 785, 786 (Minn.2004) (Shattuck I), my belief that imposition of the presumptive sentence is mandatory in the absence of additional findings. The judicial findings made in Hankerson’s case, like those made in Shattuck, were void ab initio and of no legal effect. I said in Shattuck I that I would have remanded Shattuck’s case to the district court for imposition of the presumptive sentence, and I would do the same here.
I would therefore hold that the district court is barred from convening a sentencing jury in order to resentence Hankerson to a sentence exceeding the presumptive guideline sentence for first-degree criminal sexual conduct, and therefore the district court erred in denying Hankerson’s motion to reduce her sentence from 268 months to the presumptive sentence of 144 months. Because I conclude that the district court’s order convening a resentencing jury violated the Double Jeopardy Clause, I do not reach Hankerson’s argument that the application of the 2005 amendments to section 244.10 violated the Ex Post Facto Clause of the United States Constitution.
I respectfully dissent.
. In fact, the state suggested that on resen-tencing the district court could pronounce the presumptive sentence of 144 months for the criminal sexual conduct and make the pre-*246sumplive sentence for burglary of 48 months consecutive, for a total sentence of 192 months.
. The court suggests that Hankerson’s jeopardy could not have terminated as of June 15, 2004; otherwise she would not be entitled to relief under Blakely in the first place. Han-kerson is entitled to relief under Blakely because when Blakely was decided, Hankerson still had the right to petition the United States Supreme Court for relief. See State v. Houston, 702 N.W.2d 268, 270 (Minn.2005). But if the Supreme Court had overturned Hanker-son's conviction, say on some technicality overlooked by our courts, the state's right to retry her would not have required a finding that she was still in jeopardy from her first trial. Rather, the state could have retried Hankerson on the theory, expressed -by the Supreme Court in Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), that the prosecution is entitled to "one complete opportunity to convict those who have violated its laws.” Or, the state could have employed the rationale expressed by the Supreme Court in Tateo, 377 U.S. at 466, 84 S.Ct. 1587, that allowing retrial after a conviction has been overturned actually protects the rights of defendants, because in the absence of such a right of retrial "it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution.” Either of these theories would have allowed Hankerson to be retried, and neither would have required a finding that she was still in jeopardy from her first trial.
. The same difference plagues the court's reliance on Lockhart v. Nelson, 488 U.S. 33, 34-37, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988): Nelson pleaded guilty to burglary, but his conviction as an habitual criminal was set aside because one of the convictions introduced at the sentencing hearing in support of Nelson's status as an habitual criminal had in fact been pardoned. In deciding Nelson’s case, the Supreme Court began with the proposition that "the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside.” Id. at 38, 109 S.Ct. 285. Again, Nelson's conviction was set aside on appeal, but Hankerson’s conviction was affirmed on appeal.
. The court suggests that, because Hankerson petitioned the district court for relief from her illegal sentence, "she can hardly complain” if the district court now convenes a "sentencing jury.” This is the same argument the prosecution made in Green v. United States, 355 U.S. 184, 193, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Green was convicted of arson and second-degree murder, but his convictions were overturned on appeal. Id. at 186, 78 S.Ct. 221. On retrial, the state succeeded in convicting Green of first-degree murder for the same incident, and Green again appealed on double jeopardy grounds. Id. The prosecution argued, as it does in this case, that Green, “by appealing, prolonged his original jeopardy so that when his conviction for second degree murder was reversed and the case remanded he could be tried again for first degree murder without placing him in new jeopardy.” Id. at 193, 78 S.Ct. 221. The Court responded:
Reduced to plain terms, the Government contends that in order to secure the reversal of an erroneous conviction of one offense, a defendant must surrender his valid defense of former jeopardy not only on that offense but also on a different offense for which he was not convicted and which was not involved in his appeal. Or stated in the terms of this case, he must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense for which he has been sentenced to five to twenty years’ imprisonment. As the Court of Appeals said in its first opinion in this case, a defendant faced with such a "choice” takes a "desperate chance” in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma. Conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.
Id. at 193-94, 78 S.Ct. 221. The court’s result in this case similarly puts defendants like Hankerson in an "incredible dilemma”: if she appeals from an illegal sentence for one offense, the state will simply try her for a greater one. I cannot agree that the law requires defendants to make such a choice.