concurring:
There is no more confusing area of criminal and constitutional law than the issue of double jeopardy and the related problems of statutory interpretation. The majority opinion tackles the thicket directly and clearly. I think the result is constitutionally mandated under current standards. But the opinion also is limited in the customary sound tradition of judicial restraint in that it considers only the instant appeal. My fear is that the limited, and isolated, case by case, subsection by subsection, approach may, in this area, be counterproductive in light of a general purpose of the Code “[t]o differentiate upon reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefor”. 11 Del.C. § 201(4). I therefore express my concern briefly and suggest uncharacteristically that we should at least attempt to take a broader sweep in an effort to assure a more orderly and more rational administration of the penal provisions as a whole.
The appeal in this case raises a question factually akin to that faced by this Court in Davis v. State, Del.Supr., 400 A.2d 292 (1979) and Bey v. State, Del.Supr., 402 A.2d 362 (1979). In those cases, as a matter of statutory construction, this Court determined that, “[w]hen it is- alleged that a robber displayed a deadly weapon”, the General Assembly “intended to replace the weapons statute, § 1447, with the special aggravated crime of first — degree robbery, § 832”. Davis v. State, supra, 400 A.2d 296, 297; 11 Del.C. § 832(a)(2), § 1447.1 Thus, the convictions under § 1447 were reversed.
In the present case, the Court determines that convictions for assault in the first degree under 11 Del.C. § 613(1) and for possession of a deadly weapon during the commission of a felony under 11 Del.C. § 1447 can stand. But the Court also holds that the defendant cannot be subjected to two sentences on the dual convictions due to the *127constitutional limitation of double jeopardy which proscribes multiple punishments for the same offense. Thus, the case is remanded for resentence on one of the convictions with the selection at the State’s option.
The opinion in the instant case decides the following points with which I am in agreement: there is nothing to suggest that the General Assembly intended that either statute was to be deprived of its status as a basis of prosecution due to its relation to the other; both convictions can withstand constitutional attack; there can be but one sentence due to constitutional limitations of double jeopardy (a point conceded by the State at oral argument); and resentencing should be on the conviction the State elects.
But, because the Davis case has been urged by the defense as a ground for reversal and because it is frequently difficult in an isolated case to appreciate the impact of a decision on the general administration of the codified law and because the disposition here leaves two viable approaches in similar situations with serious anomalous results, I think the State court of last resort, sitting en banc, with judicial responsibility for uniformity in criminal law interpretation, should, as urged by the State, reconsider Davis on its merits in this appeal.2 For this reason, I merely concur in the decision of the Court by this separate opinion.
UPON MOTION FOR REARGUMENT AND CLARIFICATION
HERRMANN, Chief Justice (for the majority):Subsequent to the publication of the foregoing opinions on March 14, 1980, this Court received a motion by the defendant for reargument and clarification of the opinion on the issue of resentencing in the light of Davis.3 On April 16, 1980, and before this Court acted upon the defendant’s motion, the United States Supreme Court decided the case of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). In view of the apparent conflict between the foregoing opinion and Whalen, this Court, sua sponte, requested additional memoranda from the parties concerning the effect of Whalen on the conclusions reached in the foregoing opinion.
I.
We take up first the effect of Whalen. That case involved an appeal from convictions in the District of Columbia for the crimes of rape and felony murder based on the rape. The defendant in that case contended that the two felonies merged for the purposes of punishment and that cumulative punishment for these crimes violated the Double Jeopardy Clause of the Fifth Amendment. Finding that the Double Jeopardy Clause in cumulative punishment cases involves at a minimum a determination of legislative intent, the Court stated:
“The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized to do so. The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define *128criminal offenses and to prescribe punishments to be imposed upon those found guilty of them, resides wholly with the Congress. ... If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty.”
100 S.Ct. at 1436-1437, 63 L.Ed.2d at 722 (citations omitted). It then concluded, on the basis of legislative history and the policy of lenity, that Congress did not intend to punish doubly and, therefore, reversed the Court of Appeals decision affirming the consecutive sentences.
The State contends that Whalen mandates that our foregoing opinion in this case be withdrawn. The State argues that in cumulative punishment cases the bounds of the Double Jeopardy Clause are defined and controlled by the will of the legislature.4 The defendant, on the other hand, contends that Whalen is distinguishable from this case and that the foregoing opinion should stand. We agree.
Before reaching the substance of the matter, we are compelled to note that increasing uncertainty exists in this area of the law, resulting from the somewhat ambiguous and to us, at least, puzzling pronouncements in recent United States Supreme Court cases. Compare Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Busic v. United States, - U.S. -, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). We are not alone in this posture. See e. g., People v. Hughes, 85 Mich.Ct.App. 674, 272 N.W.2d 567 (1978); Western & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUPREME COURT REV. 81, 113. We thought the Supreme Court cases, and quotations therefrom, cited in the foregoing opinion in this case, constituted settled law on the subject of double jeopardy. But the Court’s recent majority decision in Whalen seems to have added a new and, perhaps, contrary analysis structure to cumulative punishment cases without any attempt to clarify, distinguish, or overrule its prior decisions upon the basis of which the foregoing opinion was formulated.5 It is within this vacuum that we are asked to decide the effect of Whalen on the instant case.
We distinguish Whalen. That case concluded that Congress had not intended to punish doubly for the crimes of rape and felony murder. Thus, the analysis stopped with the determination that the District of Columbia Court of Appeals had exceeded its legislative authorization in affirming consecutive sentences. On the other hand, our analysis here does not terminate but, in fact, only begins with a determination of the legislative intent behind § 613 and § 1447. We are presented with a question wholly different than that posed in Whalen. There, the concern was the scope of the *129Double Jeopardy Clause when cumulative punishment for the identical crime is imposed contrary to the intent of the Congress. Here, we are confronted with the question of the scope of the Double Jeopardy Clause when cumulative punishment is meted out for the “same offense” consistent with the will of the General Assembly. In view of this governing distinction, we cannot apply to this case certain conclusions and statements in the various opinions in Whalen which we find ambiguous, to say the least, when read in the light of previous opinions of the Supreme Court which it has not renounced.
The guarantee of the Double Jeopardy Clause existed long before it was institutionalized in the Fifth Amendment. It arose to prominence to mitigate the harshness and severity of the punishment prescribed for the various common-law felonies and as a means to diminish “the danger of governmental tyranny.” Sigler, A History of Double Jeopardy, 7 Am.Jur.L.Hist. 283, 293, n.57 (1963); Note, 57 Yale L.J. 132, 133 (1947). While at common law the protection was limited to the pleas of autrefois attaint (former pardon), autrefois convict (former conviction), and autrefois acquit (former acquittal), which protected against multiple prosecutions, the protection against multiple punishment was recognized early on in this country. In Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873), it was stated:
“If we reflect that, at the time this maxim came into existence, almost every offense was punished with death or other punishment touching the person, and that these pleas are now held valid in felonies, minor crimes, and misdemeanors alike, and on the difficulty of deciding when a statute under modern systems does or does not describe a felony when it defines and punishes an offense, we shall see ample reason for holding that the principle intended to be asserted by the constitutional provision must be applied to all cases where a second punishment is attempted to be inflicted for the same offense by a judicial sentence.
“For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offense? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had and, on a second conviction, a second punishment inflicted?
“The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.”
This protection was recently reaffirmed in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 655 (1969).
The primary responsibility for safeguarding this protection, as with any of the constitutional mandates, lies with the Judiciary. This fundamental principle has existed unquestioned since the birth of our federal system.
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
“So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the *130constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-178, 2 L.Ed. 60, 73-74 (1803). To accept the State’s contentions regarding the bounds of the Double Jeopardy Clause would require this Court to abdicate its constitutional responsibility and remove from our fundamental system of checks and balances the most effective limitation on legislative power-judicial review.
It is argued that the differences between punishment for the same offense via the vehicle of two statutes and enhanced punishment by one statute, which is clearly constitutional, is illusory. We disagree. Punishment for the same offense via two separate statutes does more than merely cumulate punishment for that one offense. It has profound collateral effects on parole considerations, future treatment as an habitual offender, and may lead to harsher sentences for later offenses. See Schwartz, Multiple Punishment for the “Same Offense”: Michigan Grapples with the Definitional Problem, 25 Wayne L.Rev. 825 (1979). These differences are hardly illusory.
Moreover, if the aegis of the Double Jeopardy Clause in this substantive area extends only to acts of prosecutors and courts, 100 S.Ct. at 1441 (Blackmun, J., concurring) may this not have a “spillover” effect into multiple prosecution cases? Can the Legislature specifically negate the application of the rule of collateral estoppel, since it apparently was intended to protect against abuses in prosecutorial discretion? See Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469, 476 n. 10 (1970). Since it may punish doubly in one trial, can the Legislature require multiple trials for various charges arising from the same offense? And if the Legislature may impose double punishment for the same offense, why not triple or quadruple punishment for the same offense?
We are of the opinion that the Double Jeopardy Clause was intended to prevent double punishment regardless of the procedural context in which it is found. We can find no sound basis, in Whalen or elsewhere, to exempt the Legislature from adherence to this constitutional doctrine in the instant case. Multiple sentences in the same trial for the same act are equally as abhorrent to the constitutional guarantee, in our view, as multiple sentences for the same act resulting from multiple trials.
We are not convinced that Whalen controls the instant case in view of the ambiguities contained therein which we find in unexplained conflict with prior double jeopardy principles which we thought settled. We are unwilling to abandon those principles until the United States Supreme Court has more clearly and definitely abandoned them.6
Nevertheless, the fact that we have found Whalen to be distinguishable does not lessen its effect on our construction of the Blockburger rule. In the foregoing opinion, we concluded that the Blockburger rule was a rule of substantive law for determining whether two statutes proscribed the “same offense” for double jeopardy purposes. This, we thought, was consistent with the great weight of authority on this subject. Compare Hunter with Simpson v. United States, supra; Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); and Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed.2d 489 (1911). In Whalen, however, the Supreme Court has declared that the rule enunciated in Blockburger is not a substantive rule of law; rather it is “a rule of statutory construction”, 100 S.Ct. at 1438.
*131While the reasons for this somewhat sudden shift in emphasis are obscure we are, nevertheless, bound to follow the Supreme Court’s construction of its own case law. That does not mean, however, that we may not adopt a Blockburger — like rule of substantive law to determine when two sentences constitute punishment for the “same offense". Indeed, we note that the rule in Blockburger was drawn from a rule of substantive law for determining whether punishment for the “same offense” in multiple prosecution situations violates the principles of double jeopardy. See Morey v. Commonwealth, Mass.Supr., 108 Mass. 433 (1871); Commonwealth v. Roby, 29 Mass.Supr. 496, 12 Pickerings’ Rep. 496 (1832); People v. Goodwin, N.Y.Supr., 18 Johns.Rep. 187 (1820). Compare 11 Del.C. § 208(1)(b)(1).7 We therefore conclude that multiple sentences at the same trial may not be had unless the required statutory elements of proof for each offense contains an element that the other does not.
II.
Turning now to the motion for clarification regarding the proper resentencing procedures to be adopted under the foregoing opinion in the light of the above quoted statements in Davis:
As to the sentencing procedures under Davis (and Bey v. State, Del.Supr., 402 A.2d 362 (1979), they do not apply to a Hunter case. We distinguished Davis for prosecu-torial purposes and it is also different from Hunter for sentencing purposes.
In Davis, we held that “defendant’s conviction under the weapons statute [§ 1447] cannot stand,” 400 A.2d at 297; here, however, the § 1447 conviction does stand and, indeed, it is affirmed as part of our ruling in this appeal. In Davis, only the “conviction for attempted first-degree robbery remain[ed].” 400 A.2d at 297, and the case was remanded for resentencing on that charge. And since that was the one conviction which remained, obviously it was the only basis on which a sentence could be imposed. But in Hunter, we have determined that both convictions remain and the State has an election on whether to proceed under § 613 or § 1447 (but not both).
The arguments have, however, identified one modification which should be made to a Davis-type sentencing procedure, and it is appropriate to make it here. In Davis we held that:
“At resentencing, the Trial Judge will not be limited to the mandatory minimum sentence imposed initially for the attempted robbery conviction, but the sentence may not exceed the combined duration of the two terms imposed before this appeal. This limitation appears to comply with the requirements imposed by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).”
400 A.2d 297.
In North Carolina v. Pearce, the United States Supreme Court held that the power of the State to resentence a defendant to an increased term over that originally imposed, without contravening the guaranty against double jeopardy, arises only when the defendant’s original conviction and sentence have been “nullified,” and a second conviction following a retrial has been obtained. We are now persuaded that such circumstances are so factually and legally different from those found in a Davis -type case that Pearce does not provide a useful guide in the sentencing process.
*132The proper rule to apply is the one which prohibits increasing a sentence after a defendant has commenced to serve it. In United States v. Turner, 7 Cir., 518 F.2d 14 (1975), the Court said:
“The law is well settled that increasing a sentence after the defendant has commenced to serve it is a violation of the constitutional guaranty against double jeopardy, [citations omitted]”
Compare Chandler v. United States, 5 Cir., 468 F.2d 834 (1972); United States v. Welty, 3 Cir., 426 F.2d 615 (1970); United States v. Adams, 6 Cir., 362 F.2d 210 (1966); Commonwealth v. Brown, 455 Pa.Supr., 274, 314 A.2d 506 (1974); 4 Wharton’s Criminal Procedure (12 ed.) § 611.
Thus, any post-appeal sentence imposed in a Davis-type case may not exceed the sentence originally imposed for the conviction which remains, if the defendant has begun to serve the sentence. Any ruling to the contrary in the Davis opinion is abandoned.
. For purposes of the point of this separate opinion, it is not necessary to further complicate the issues by considering that Davis involved attempted robbery. But see Smith v. State, Del.Supr., 412 A.2d 331 (1980).
. In this area of the law, it is doubtful that all anomaly can be eliminated. But anomalous results created by statutory interpretation, as in Davis, should give one pause and cause one to question whether the results were truly legislatively intended.
. In Davis this Court stated:
“Because we have determined that § 832 is indistinguishable from and has replaced § 1447 in cases of armed robbery, defendant’s conviction under the weapons statute cannot stand. His conviction for attempted first-degree robbery remains, however, and the case will be remanded to Superior Court for resentencing on that charge. At resentencing, the Trial Judge will not be limited to the mandatory minimum sentence imposed initially for the attempted robbery conviction, but the sentence may not exceed the combined duration of the two terms imposed before this appeal. This limitation appears to comply with the requirements imposed by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).” 400 A.2d at 297.
. This is a view apparently shared by Justices Blackmun and Rehnquist. See 100 S.Ct. at 1441, 1443, 63 L.Ed.2d at 726, 728. See also Busic v. United States, - U.S. -, -, -, 100 S.Ct. 1747, 1756-1758, 1758-1759, 64 L.Ed.2d 381 (1980).
. For example, Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) declared that “[bjefore an examination is made to determine whether cumulative punishments are constitutionally permissible, it is necessary, following our practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple penalties for the single transaction in which he engaged.” 98 S.Ct. at 913. Whalen concluded, however, that “the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” 100 S.Ct. at 1436, 63 L.Ed.2d at 721. On the basis of the later holding in Whalen it might be argued that the procedural analysis in Simpson has been impliedly overruled, c. f. Busic v. United States, - U.S. -, -, 100 S.Ct. 1758-1759, 64 L.Ed.2d 381 (1980) (Rehnquist, J., dissenting), Simpson however has recently been reaffirmed. Busic v. United States, supra.
For other contradictory conclusions compare the language in Whalen with that of the decisions cited in the foregoing opinion in the instant case.
. Certainly Article I, § 8 of the Delaware Constitution, which states that “no person shall be for the same offense twice put in jeopardy of life and limb . . and Article I, § 7, which provides that “[i]n all criminal prosecutions . . . the accused . shall not . . . be deprived of life, liberty or property, unless by the law of the land”, would have application in cumulative punishment cases such as this. Because of the construction we have placed on the federal constitutional provisions, however, we need not decide the scope of these provisions at this time.
. 11 Del.C. § 208(1)(b)(1) states:
Ҥ 208. When prosecution is barred by former prosecution for different offense.
“Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution in a court having jurisdiction over the subject matter of the second prosecution under the following circumstances:
“(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in § 207 of this title and the subsequent prosecution is for:
“b. The same conduct, unless:
“1. The offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil, or * * * .”